Review of the captioning obligations in the Broadcasting Services Act 1992 Consultation paperJUNE 2016

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Contents

1. Introduction

2. Glossary

3. Legislative framework

4. Context

5. Overview of issues

6. Exempt material

7. Captioning obligations—free-to-air television

8. Captioning obligations—subscription television

9. Exemption and target reduction orders

10. The Captioning Standard

11. Emergency warnings

12. Reporting and record-keeping

13. Licence conditions and the compliance framework

14. Part 9D drafting

Invitation to comment

Appendix A: Compliance data and other information

Appendix B: Calculating annual captioning targets for subscription television

Appendix C: Information for consumers—how to make a complaint

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1. Introduction 1.1 Captioning obligations in the Broadcasting Services Act 1992 The captioning obligations for free-to-air commercial television broadcasting licensees, national television broadcasters (free-to-air television broadcasters), subscription television broadcasters and narrowcasters (subscription television licensees) are set out in Part 9D of the Broadcasting Services Act 1992 (BSA).1 These requirements cover:> rules about the captioning that is required> reporting and record-keeping on compliance with these rules> the requirement for a Captioning Standard about the quality of captions.

Part 9D to the BSA was introduced in 2012.2 The Explanatory Memorandum to the associated Bill3 noted the amendments facilitate improved access to free-to-air and subscription television by Australia’s hearing-impaired community.4

The Explanatory Memorandum noted the Bill was compatible with Australia’s human rights obligations because it would increase access to television services for people with a hearing impairment and increase access to emergency warnings on television for people with a hearing or vision impairment.5

The broader regulatory regime for radio and television broadcasting services, including digital services, is also established under the BSA. It sets out the overall objects, regulatory policy and the intention of Parliament regarding the regulation of broadcasting services.

A key plank of the regulatory policy is the express intent of Parliament that broadcasting services be regulated in a manner that enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services.6

1.2 Review of the captioning obligations Part 9D of the BSA requires the ACMA to conduct a review of the operation of captioning obligations and associated licence conditions at Schedule 2 to the BSA (the ACMA statutory review).7

The terms of the ACMA statutory review as set out in section 130ZZE of the BSA are:

(1) Before 31 December 2016, the ACMA must conduct a review of the following matters:

1 Captioning is the presentation of the audio component of audio-visual content as text on screen—this includes sound effects as well as the spoken word. It is generally intended to assist viewers who are deaf or hearing impaired. 2 The Broadcasting Services Amendment (improved Access to Television Services) Act 2012.3 The Broadcasting Services Amendment (Improved Access to Television Services) Bill 20124 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 1.5 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 5. 6 Broadcasting Services Act 1992, section 4. 7 Broadcasting Services Act 1992, section 130ZZE.

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(a)  the operation of this Part;

(b)  whether this Part should be amended;

(c)  the operation of paragraph 7(1)(o) of Schedule 2;

(d)  whether paragraph 7(1)(o) of Schedule 2 should be amended;

(e)  the operation of paragraph 10(1)(eb) of Schedule 2;

(f)  whether paragraph 10(1)(eb) of Schedule 2 should be amended;

(g)  the operation of paragraph 11(1)(bc) of Schedule 2;

(h)  whether paragraph 11(1)(bc) of Schedule 2 should be amended.

Consultation

(2) In conducting the review, the ACMA must make provision for public consultation.

Report

(3) The ACMA must give the Minister a report of the review before 30 June 2017.

(4) The Minister must cause copies of a report under subsection (3) to be tabled in each House of the Parliament within 15 sittings days of that House after receiving the report.

Terms 1(a) and (b) refer to the operation of the Part 9D rules. Terms 1(c) to (h) focus on the fact that compliance with Part 9D is a licence condition for commercial and subscription television broadcasting licensees, and broadcasting services provided under a class licence (relevantly subscription television narrowcasters).

1.3 Approach to the reviewThe BSA requires the ACMA to review the operation of the captioning rules in the BSA only. Captioning on other platforms is out of scope for this review.

The focus therefore, is on considering the efficiency and effectiveness of captioning rules for television services. In conducting the review, the ACMA will be guided by the public interest that subsists in both improving access to television services for Australia’s deaf and hearing-impaired community and minimising unnecessary administrative and financial burdens for industry.8

In December 2015, the Department of Communications and the Arts (the Department) released a Captioning regulatory framework policy consultation paper (the Department’s consultation).9 The ACMA will have close regard to the Department’s consultation and the submissions made to that consultation. For that reason, it is unnecessary for submitters to the Department’s consultation to make duplicative submissions to the ACMA’s statutory review. However, the ACMA welcomes all submissions relevant to the operation of Part 9D and the relevant Schedule 2 provisions.

Following its consideration of submissions, further consultation may be undertaken with stakeholders, to ensure the implications of any proposals for change are properly considered.

8 See subsection 4(2)(a) of the BSA. 9 A copy of the Department’s consultation paper, together with copies of the submissions received is available at www.communications.gov.au/have-your-say/improving-captioning-regulation.

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The ACMA must conduct the review before 31 December 2016 and provide a report of its review to the Minister before 30 June 2017.

It should also be noted that as a federal election is taking place on 2 July 2016, Commonwealth agencies, including the ACMA, are currently subject to the caretaker conventions. Future policy decisions on captioning will be determined by an incoming government. Whatever the outcome of the ACMA statutory review process, any decision to make any changes to Part 9D of the BSA is a question for government.

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2. GlossaryAbbreviation Meaning

ACMA Australian Communications and Media Authority

BSA Broadcasting Services Act 1992

Free-to-air television broadcasters

Free-to-air commercial television broadcasting licensees and national broadcasters

Subscription television licensees

Subscription television broadcasters and subscription television narrowcasters

The Captioning Standard Broadcasting Services (Television Captioning) Standard 2013

The Deregulation Bill Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014

The Deregulation Act Broadcasting and Other Legislation Amendment (Deregulation) Act 2015

The Senate InquirySenate Environment and Communications Legislation Committee 2014 Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014

The Department Department of Communications and the Arts

The Department’s consultation

Department of Communications and the Arts Captioning regulatory framework policy consultation paper, December 2015

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3. Legislative framework 3.1 Summary of captioning requirementsCaptioning rules for free-to-air commercial television broadcasting licensees and national television broadcasters (free-to-air television broadcasters) and subscription television broadcasters and narrowcasters (subscription television licensees) are set out in Part 9D of the BSA.

Captioning obligations for free-to-air television broadcasters Free-to-air television broadcasters are required to caption:> 100 percent of programs broadcast between 6 am and midnight on their primary

channels> all news and current affairs programs broadcast at any time on their primary

channels.10

The provisions require television programs to be transmitted with captions on a licensee’s multi-channelled commercial television broadcasting service, or a national television broadcaster’s multi-channelled service, if that same program has been previously transmitted with captions on another of the licensee’s or national broadcaster’s television broadcasting services.11

Free-to-air television broadcasters and subscription television licensees are not required to caption programs that are wholly in a language other than English, programs that consist wholly of music with no human vocal content that is in English, or parts of programs with no human vocal content.12

Captioning obligations for subscription television licenseesSubscription television licensees will eventually be required to caption 100 per cent of programs in a 24-hour period. The legislation, however, allows this target to be reached gradually.13

There are nine different categories of subscription television services and each has a different annual captioning target. These targets increase by five per cent each year until the target reaches 100 per cent.14 For example: For 2015–16, the annual target for category ‘A’ movie services is 80 per cent. This

target will reach 100 per cent by 2019.

> For 2015–16, the annual target for sports services is 20 per cent (noting licensees can aggregate the required target across sports channels provided by the same channel provider, as long as each service provides at least two-thirds of the required target).15 This target will reach 100 per cent by 2031.

Subscription television licensees may nominate a particular number of services within a genre as exempt (s130ZX exemptions). Specific conditions apply to this nomination. The number of services that can be nominated as exempt will diminish incrementally until 2022, when no services can be claimed under this exemption.

10 See subsection 130ZR(1) of the BSA.11 See sections 130ZR and 130ZS of the BSA.12 See subsections 130ZM; 130ZN and 130ZO of the BSA.13 See section 130ZV of the BSA.14 See sections 130ZV, 130ZVA and 130ZW of the BSA.15 See subsection 130ZV(3) of the BSA.

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A new subscription television service is exempt from the captioning obligations for a certain period, if it predominantly consists of programs not previously transmitted in Australia prior to the commencement of the service.16

Captioning standardsFree-to-air television broadcasters and subscription television licensees are required to comply with standards determined by the ACMA that relate to the quality of captioning services.17 The Broadcasting Services (Television Captioning) Standard 2013 (the Captioning Standard) currently sets out requirements relating to the quality of captioning services that include the readability, comprehensibility and accuracy of the captions.

Emergency warningsWhen transmitting an emergency warning upon request by an emergency service agency, free-to-air television broadcasters and subscription television licensees are required to transmit the whole warning in text and speech and, if practicable, provide a captioning service for the warning.18

Exceptions to compliance with captioning obligationsBreaches of the obligation to provide captioning services may be disregarded if they are attributable to significant difficulties of a technical or engineering nature that could not have been reasonably foreseen by the television broadcaster/licensee.19

Exemptions and target reduction orders Free-to-air television broadcasters and subscription television licensees may apply to the ACMA for exemption orders and target reduction orders for specified television services for one to five financial years, on the grounds of unjustifiable hardship.20

Annual compliance reporting and record-keepingFree-to-air television broadcasters and subscription television licensees are required to give annual reports to the ACMA relating to compliance with captioning obligations, the Captioning Standard and the broadcast of emergency warnings. These reports are to be in a form approved by the ACMA.21

They are also required to make written records, in a form approved by the ACMA, demonstrating compliance with captioning obligations as well as audio-visual records demonstrating compliance with the Captioning Standard and emergency warning broadcasts.22

3.2 Compliance and enforcement frameworkFramework for regulation established by the BSAThe overall framework of regulation established by the BSA is a combination of:> direct regulation (including standards and licence conditions)> co-regulation (industry codes).

16 See subsection 130ZV(6) of the BSA.17 See section 130ZZA of the BSA.18 See section 130ZZB of the BSA.19 See sections 130ZUB and 130ZAAB of the BSA.20 See sections 130ZUA, 130ZUAA, 130ZY and 130ZYA of the BSA.21 See section 130ZZC of the BSA.22 See section 130ZZD of the BSA.

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The ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules in a manner commensurate with the seriousness of the breach.

Where a licensee breaches a licence condition under the BSA, the ACMA has the power to issue a remedial direction requiring actions to secure future compliance, accept an enforceable undertaking, impose an additional licence condition, or suspend or cancel a licence.

Where there has been a breach of a code, the ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition requiring a licensee to comply with the code. The ACMA may also informally agree to accept measures by broadcasters to improve compliance. For example, the ACMA has on many occasions agreed measures with licensees involving action by them to address compliance problems. Such measures have often succeeded in improving compliance behaviour.

Compliance reports by broadcasters to the ACMA, as well as complaints made to and investigated by the ACMA, represent additional and transparent ways of monitoring and encouraging regulatory compliance. Free-to-air television broadcasters and subscription television licensees must prepare and give the ACMA a report, within 90 days after the end of each financial year, relating to their compliance with captioning obligations.

Further information about the ACMA’s compliance and enforcement approach can be found in the ACMA’s compliance and enforcement policy.23

Compliance framework for captioning on free-to-air commercial television and subscription televisionCompliance with the Part 9D captioning rules for free-to-air commercial television broadcasters and subscription television licensees is a licence condition listed in Schedule 2 of the BSA.

Some provisions about captioning are also included in the Subscription Broadcast Television Codes of Practice 2013 and the Subscription Narrowcast Television Codes of Practice 2013. These state that closed captioning, where available, will be clearly identified in program schedules and program guides.

The Commercial Television Industry Code of Practice 2015 does not include equivalent provisions about closed captioning.

Compliance framework for captioning on national broadcasting services The national broadcasters, ABC and SBS, are not licenced services under the BSA. They are independently authorised to broadcast under the Australian Broadcasting Corporation Act 1983 and Special Broadcasting Service Act 1991, respectively.

For the national broadcasters, non-compliance with the Part 9D captioning rules is a breach of the BSA.

If the ACMA were to find that a national broadcaster had breached the BSA, it could recommend certain actions the broadcaster should take. If the national broadcaster did not act on the ACMA’s recommendation, the ACMA could report the matter to the Minister, who must table the report in Parliament.

The ABC and SBS television codes of practice do not include provisions about captioning.

23 www.acma.gov.au/theACMA/About/Corporate/Responsibilities/compliance-enforcement-policy

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Disability Discrimination Act 1992 (Cwlth)

Part 2 of the Disability Discrimination Act 1992 (the DDA) prohibits discrimination on the basis of a person’s disability. Exemptions to this prohibition are provided in Division 5 of Part 2. Specifically, subsection 47(2) provides that Part 2 does not make unlawful anything done by a person in direct compliance with a prescribed law.

Part 9D is a prescribed law for the purposes of subsection 47(2) of the DDA. This means that television broadcasters, acting in direct compliance with their captioning obligations under the BSA, cannot otherwise be liable for unlawful discrimination under Part 2 of the DDA.

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4. Context 4.1 History of the Part 9D captioning obligations As noted above, Part 9D to the BSA was introduced into the BSA in 2012. Prior to 2012, the ACMA was responsible for investigating compliance with captioning obligations (contained in the BSA) for free-to-air television broadcasters, while the Australian Human Rights Commission could grant broadcasters/licensees, on application, temporary exemptions from having to provide a captioning service.

The Broadcasting Services Amendment (Improved Access to Television Services) Act 2012 consolidated captioning regulation in the BSA with the introduction of Part 9D. This legislation introduced captioning obligations for subscription television, required the ACMA to develop a standard relating to the quality of captioning services and specified that a review of the captioning requirements must be undertaken by December 2015 (the current ACMA statutory review with a revised date).

In late 2013, the former Minister for Communications invited stakeholders to advise on areas where regulation could be improved or was unnecessary. During this process, stakeholders identified the costs of the captioning reporting obligations as an issue for consideration.

In October 2014, the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 (the Deregulation Bill) was introduced to Parliament. In relation to captioning, the proposed amendments included:> removing annual compliance reporting requirements for free-to-air television

broadcasters> allowing subscription television licensees to aggregate the required quota across

sports channels provided by the same channel provider> changes to repeat captioning obligations for subscription television licensees> captioning exemptions for new subscription channels in their first year of operation> changes to record-keeping requirements> changes to the framework for the captioning quality standard.

The Deregulation Bill generated stakeholder comment, particularly about the impact that the removal of the annual reporting requirements for free-to-air television might have on the viewing experience for deaf and hearing-impaired consumers.

The Senate referred the provisions of the Deregulation Bill to the Senate Environment and Communications Legislation Committee for inquiry and report by 9 February 2015 (the Senate Inquiry). The Senate Inquiry received 26 submissions24 relating to the proposed captioning changes and the report is available from the Parliament of Australia website.25

24www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/ Broadcasting_Deregulation/Submissions 25www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/ Broadcasting_Deregulation/Report

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The Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 (the Deregulation Act) was passed on 19 March 2015. Amendments to the captioning framework included: > the ability to average out captioning targets for sports channels across all the

sports services provided by a particular channel provider to a subscription licensee> amendments to the requirements for captioning of repeat programs for subscription

television licensees> automatic exemption from captioning requirements for new subscription television

channels in their first year of operation, if the service is predominantly transmitting content not previously broadcast in Australia

> addition of provisions relating to the framework for the quality standards> changes to record-keeping provisions> extension of the timeframe for the statutory review to 31 December 2016

(previously 31 December 2015).

4.2 Review of the Television Captioning StandardThe Captioning Standard was developed in accordance with the framework prescribed by Part 9D of the BSA. Part 9D defines quality, for the purposes of the Captioning Standard, as including readability, comprehensibility and accuracy. Each of these three elements is further explained in the Captioning Standard with a list of factors that can be considered when assessing the quality of captions.

As part of the Deregulation Act, Part 9D was amended to specify that in determining the Captioning Standard, the ACMA must consider the differences (including time constraints for live content) between providing captioning services for:> live television programs and pre-recorded television programs> wholly live or wholly pre-recorded television programs and television programs that

include both live and pre-recorded program material.

Part 9D also states the ACMA is not authorised to determine that a lower quality of captioning service is acceptable for a kind of program or program material.

The amendments introduced under the Deregulation Act required the ACMA to review the Captioning Standard by 19 March 2016.

As part of the review, a discussion paper was released for public comment in November 2015. The discussion paper outlined possible options for assessing the quality of captioning services for live and pre-recorded television programs, and television programs that include both live and pre-recorded program material. Eleven submissions 26 were received in response during the consultation period.

The ACMA concluded its review of the Captioning Standard on 3 March 2016. The final report outlined the ACMA’s decision that a non-metric approach is the most suitable way of assessing the quality of captioning services under the current legislative framework. Further, when assessing the quality of a captioning service for a program, the quality of a captioning service is best determined by considering the quality of the captioning service in the context of the program as a whole, the circumstances of the broadcast, and the nature of the program being broadcast.

As a result of the review, no substantive changes were made to the Captioning Standard.

26 www.acma.gov.au/theACMA/review-of-tv-captioning-standard

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4.3 The Department’s consultationIn December 2015, the Department released its Captioning regulatory framework policy consultation paper (the Department’s consultation). The paper was designed to facilitate discussion about aspects of the captioning regulatory framework that had been identified by stakeholders as potentially requiring reform, but that had not been addressed by the Deregulation Act.27 It canvassed options for the reform of: > annual captioning compliance reporting requirements> emergency warnings captioning obligations (reporting and record-keeping

requirements)> regulatory measures for the free-to-air sector (extending obligations to 24 hours

and to include the multi-channels)> the operation of captioning obligations for the subscription television sector

(exploring channel plans, with consistent targets across platforms and simplified exemptions, and whether responsibility for captioning and reporting should be transferred to the channel providers).

Issues that were out of scope for the Department’s consultation included:

> captioning obligations for commercial regional television broadcasters> the treatment of captioning breaches> assessment of captioning quality> the averaging of captioning targets on subscription sports channels> consultation requirements for the exemption and target reduction application

process> the definition of a new channel provider> repeat programming requirements for subscription television services> the compliance and enforcement regime.

There were eight submissions28 to this paper and the Department’s consultation remains under consideration, noting that caretaker conventions are currently in place.

27 Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 5.28 www.communications.gov.au/have-your-say/improving-captioning-regulation

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5. Overview of issuesFor the ease of submitters, Table 1 summarises the key captioning rules and compliance frameworks on which the ACMA’s statutory review is focussed. It flags areas where the ACMA is already aware of stakeholder concern. However, interested parties are invited to submit on any matter covered by the terms of reference.

The ACMA notes the Department’s consultation is also considering some elements of Part 9D. As indicated previously, submissions to the Department’s consultation are reflected in the discussion of the Part 9D provisions in this ACMA consultation paper. Matters currently under consideration by the Department are also highlighted in blue in the table below.29

Table 1: Overview of potential issues with the captioning rules

Broad consultation area

Summary of rules Comments

Definitions Defines key terms used in Part 9D. The ACMA is not aware of issues or recent stakeholder comment about the operation of the relevant provisions, but invites submissions.

Material exempt from captioning

Exempt material includes foreign language programs and programs with no identifiable human vocal content.

The ACMA notes previous stakeholder comment about the captioning of foreign language news and invites submissions on any aspect of the provisions.

Captioning obligations for free-to-air television

The basic rule: > The requirement to caption 100% of

programming broadcast between 6 am and midnight on each main free-to-air channel and to caption 100% of news and current affairs programs at all times on each main channel.

This issue is being considered by the Department, however submissions are invited.

‘Repeat’ rules for multi-channels:> There is no obligation for programs on

the multi-channels to be captioned but ‘repeats’ of programs that have previously been broadcast by the licensee in the licence area with captions, must also be captioned on the multi-channels.

This issue is being considered by the Department, however submissions are invited.

Exemptions for section 40 licensees for the first year of operation:> Section 40 licences are issued under

the BSA without public tender, upon payment of a fee, to permit broadcasting of commercial services outside the broadcasting services bands.

The ACMA is not aware of issues or recent stakeholder comment about the operation of the relevant provisions, but invites submissions.

29 As a federal election is taking place on 2 July 2016, the Department is currently subject to the caretaker conventions and future policy decisions on captioning will be determined by an incoming government.

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Broad consultation area

Summary of rules Comments

Captioning targets for subscription television

Captioning targets for subscription channels are based on the type of service being provided—increasing each year, until they reach 100%.

Issues relating to the operation of captioning targets for subscription television are being considered by the Department, however submissions are invited.

Licensees are able to ‘average out’ their captioning targets across all sports services, provided by the same channel provider to a licensee, as long as each service provides at least two-thirds of the required target for that service.

The ACMA notes previous stakeholder comment about the averaging of sports services and invites submissions on any aspect of the provisions.

Exclusion for time-shifting and high definition services.

The ACMA is not aware of issues or recent stakeholder comment about the operation of the relevant provisions, but invites submissions.

Exclusion for new subscription television services.

The ACMA notes previous stakeholder comment about the exclusion for new services and invites submissions on any aspect of the provisions.

Captioning of repeat programs on subscription services.

The ACMA notes previous stakeholder comment about obligations for repeat programs and invites submissions on any aspect of the provisions.

Captioning for simultaneously transmitted programs.

The ACMA is not aware of issues or recent stakeholder comment about the operation of the relevant provisions, but invites submissions.

Exemptions and target reductions on the grounds of significant hardship

Rules regarding the application process, what the ACMA must have regard to when assessing applications, definition of eligible periods and the consultation requirements.

Issues relating to the operation of exemptions and target reductions are being considered by the Department, however submissions are invited.

Captioning quality

Sets out the framework for the Captioning Standard.

The ACMA notes previous stakeholder comment about the framework for the captioning standard and invites submissions on any aspect of the provisions.

Emergency warnings

Requirement to broadcast emergency warnings in text and speech. Further requirement to caption if reasonably practicable.

The ACMA notes previous stakeholder comment about the requirements for emergency warnings broadcasts and invites submissions on any aspect of the provisions.

Reporting and record-keeping

Annual reports:> Requirement to submit annual reports

at the end of the financial year, relating to compliance with captioning obligations, the Captioning Standard

This issue is being considered by the Department, however submissions are invited.

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Broad consultation area

Summary of rules Comments

and emergency warnings.

Record-keeping (general rules):> Requirement to make written records

to show compliance with captioning obligations.

> Requirement to make audio visual records to show compliance with the captioning standard.

The ACMA notes previous stakeholder comment about the general record-keeping requirements and invites submissions on any aspect of the provisions.

Record-keeping (emergency warnings):> Requirement to make audio visual

records to show compliance with emergency warnings broadcasts.

This issue is being considered by the Department, however submissions are invited.

Licence conditions and compliance framework

Compliance with Part 9D is a licence condition for free-to-air commercial television broadcasters and subscription television licensees.

The ACMA notes previous stakeholder comments about issues related to the enforcement of this provision—for example, the treatment of captioning breaches (discussed at section 13.4) and invites submissions on any aspect of the provisions.

Compliance framework for regional broadcasters.

The ACMA notes previous stakeholder comment about compliance issues relating to regional broadcasters and ‘networked’ programming and invites submissions on any aspect of the provisions.

Linking compliance with the Captioning Standard to compliance with captioning targets.

The ACMA notes previous stakeholder comment about linking compliance with captioning targets to compliance with the Captioning Standard and invites submissions on any aspect of the provisions.

Treatment of breaches: > Breaches attributable to unforeseen

significant difficulties of a technical or engineering nature are to be disregarded.

The ACMA notes previous stakeholder comment about providing greater flexibility for breaches of Part 9D and invites submissions on any aspect of the provisions.

Complaints process. The ACMA notes previous stakeholder comment about the complaints process for captioning issues and invites submissions.

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6. Exempt materialRelevant provisions:> s130ZM—foreign language programs> s130ZN—programs that consist wholly of music, with no human vocal content in

English> s130ZO—captioning service provided for part of a program, where the program

consists partly of human vocal content in English and partly of other content.

These provisions mean that broadcasters are not required to caption programs that are wholly in a language other than English; programs that consist wholly of music, with no human vocal content in English; or parts of programs with no human vocal content.

The Explanatory Memorandum that accompanied the introduction of Part 9D in 2012 provides some explanation for why only English language programs are required to be captioned:

The Bill does not require captioning for non-English language programs and generally a captioning service will be provided in English. This may limit the rights of persons with hearing impairments from non-English speaking backgrounds to access television services, in particular emergency warnings. However, such requirements would create a financial and administrative burden for broadcasters that, in light of the fact that foreign language programs are generally subtitled, would be disproportionate to any benefit for the non-English speaking portion of the hearing impaired community.30

Recent stakeholder commentsOne submission to the Department’s consultation suggested that all news should be captioned, regardless of the language it is delivered in.31 Other stakeholders have emphasised the importance of television news and information for the hearing-impaired and deaf community.32

The ACMA notes previous stakeholder comment about the captioning of foreign language news and invites submissions on this, including consideration of both the impact on caption users and the practicality and cost of such a requirement, or on any other aspect of the provisions.

30 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 6.31 Ian Mitting submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 1.32 See, for example, the Australian Communications Consumer Action Network (ACCAN) submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 1.

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7. Captioning obligations—free-to-air television7.1 The basic ruleRelevant provisions:> s130ZL definition of designated viewing hours> s130ZR the basic rule

These provisions require that television programs transmitted on a free-to-air television broadcaster’s main channel, between 6 am and midnight, must be captioned and that news or current affairs programs transmitted at any time on the main channel must be captioned.

Prior to changes introduced by Part 9D, the designated viewing hours were between 6 pm and 10.30 pm. The Explanatory Memorandum that accompanied Part 9D noted:

Extending the definition of designated viewing hours would facilitate greater access to television programs for people with hearing impairments.33

Appendix A provides information about compliance with these obligations.

Recent stakeholder commentsThe Department’s consultation canvassed expanding the designated viewing hours from 18 hours to 24 hours per day.

Caption users and advocacy groups expressed support for this option, focussing on the positive impact it would have for viewers—and noting that extending captioning requirements to a 24-hour period would bring free-to-air obligations in line with international policies and rules applicable to Australian subscription television.34

However, some industry stakeholders submitted that extending captioning requirements to 24-hours a day would significantly increase costs, while providing negligible viewer benefit, given that viewer numbers are low during the 12 pm to 6 am period.35

Noting that captioning requirements for free-to-air television are canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions or provide new submissions on the issue.

33 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 12.34 See, for example, the ACCAN submission p. 6, Media Access Australia (MAA) submission pp. 4–5 and Deaf Australia submission, p. 6.35 See, for example, Free TV submission pp. 7–9, ABC submission p. 2 and SBS submission pp. 4–5.

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7.2 Special rules for multi-channelled servicesRelevant provisions:> s130ZR(4)—exceptions to the basic rule> s130ZS—special rules for multi-channelled services

These provisions require television programs to be transmitted with captions on a licensee’s multi-channelled commercial television broadcasting service, or a national television broadcaster’s multi-channelled service, if that same program has been previously transmitted with captions on another of the licensee’s or national broadcaster’s television broadcasting services.

Recent stakeholder commentsThe Department’s consultation canvassed extending the captioning obligations to multi-channels. Some submitters supported this change, noting the policy justification for exempting multi-channels was now less relevant because, from a viewer’s perspective, there was no longer a distinction between the main channel and the multi-channels.36

However, some industry stakeholders commented that captions are already provided on multi-channels where there is viewer demand, and that extending captioning obligations to multi-channels would have a significant financial impact, resulting in broadcasters investing less in other services.37

Noting that captioning on the multi-channels is canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions or provide new submissions on the issue.

7.3 Exemption for section 40 licenseesRelevant provisions:> s130ZR(8)—exemption for section 40 licences

This provides that a licensee of a commercial television broadcasting service that was allocated under subsection 40(1) of the BSA is exempt from captioning programs for the first year of operation of the licence. The provision also allows the ACMA to propose a longer period for the exemption.

Section 40 licences are issued under the BSA without public tender and upon payment of a fee, to permit broadcasting of commercial services outside the broadcasting services bands. There are currently no section 40 television licences.

No issues have been identified to date about the operation of this provision; however, the ACMA invites submissions.

36 See, for example, MAA submission p. 5 and ACCAN submission p. 6.37 See, for example, Free TV submission p. 8.

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8. Captioning obligations—subscription television8.1 Annual captioning targets Relevant provisions:> s130ZV—annual captioning targets> s130ZVA—categories for subscription television movie services> s130ZW—categories for subscription television general entertainment services> s130ZX—exemptions for certain services before 1 July 2022

These provisions set out annual captioning targets for subscription television services. The targets vary depending on the type of service provided. There are nine categories:> movie service (divided into three sub-categories)> general entertainment service (divided into three sub-categories)> news service> sports service> music service.

Currently, movie services have the highest captioning targets and music services the lowest. The targets increase by five per cent each year, until each category reaches 100 per cent.

For movie and general entertainment services, licensees nominate which category a particular service fits into, based on how many services the licensee is providing. This means that captioning targets for a particular channel may differ depending on who is providing the service.

If a licensee has met the annual captioning target for the year for a certain number of services (the threshold number of services), then the provision allows for application for an exemption from captioning for the remaining services. This is a transitional measure that ends in 2022.

Detailed information about the operation of these provisions is provided at Appendix B.

Appendix A provides information about compliance with these obligations.

Recent stakeholder commentsThe Department’s consultation canvassed several alternative options to the current rules, with the aim of providing simpler rules and consistent outcomes. These included:> Introducing channel plans with consistent targets across platforms and simplified

exemptions. > Transferring responsibility for meeting the captioning target from the licensee to the

channel provider (although the licensee would retain ultimate responsibility for compliance). This would achieve a consistent annual captioning target for each channel, regardless of which provider delivered it.

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Industry stakeholders, and advocacy groups expressed the view that the current rules are complex and do not provide good outcomes for caption users.

For example, Australian Communications Consumer Action Network (ACCAN) commented that the captioning requirements for subscription television licensees are overly complicated and do not provide consumers with certainty38 and Deaf Australia noted due to the current system, deaf and hard-of-hearing consumers do not have advance knowledge of which programs will be accessible when they subscribe to subscription television.39 The Australian Subscription Television and Radio Association (ASTRA) submitted that the current regulatory scheme does not reflect current service delivery arrangements and proposed a model based around channel providers.40

Noting issues relating to the operation of captioning targets on subscription television are canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions or provide new submissions on the issue.

8.2 Modified formula for sports servicesRelevant provisions:> s130ZV(3)—modified formula for subscription television sports services

This provision allows for the captioning targets for sports services to be averaged across all sports services provided by a particular channel provider to a licensee, as long as each service provides at least two-thirds of the required target for that service.

The intention of the provision is to provide flexibility for licensees when scheduling sports across a range of services. It is also intended to provide consistency for viewers, ensuring that if a particular sport is captioned on one service, it will also be captioned when it is transmitted on another service.

Subsection 130ZV(3) is a relatively new provision and was added to Part 9D in March 2015.

Recent stakeholder commentsASTRA provided an example to illustrate the rationale for this provision in its submission to the Senate Inquiry:

… for example, the first day of a golf tournament is shown on FOX SPORTS 1, but the second day is shown on FOX SPORTS 2. There could be a scenario where the captioning target for FOX SPORTS 2 had already been met, whilst the target for FOX SPORTS 1 had not yet been met. Given that FOX SPORTS is likely to choose to apply its captioning investment in order to meet the regulated targets, it may be that (in the absence of amendment) the captioning would not ‘follow’ the tournament to FOX SPORTS 2 … Viewers who had watched the first day of the tournament with captions would then not have the benefit of captions for the second day.

[…]

38 ACCAN submission to the policy consultation paper Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 7.39 Deaf Australia submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 6.40 ASTRA submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, pp. 9–16.

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[footnote] Shifting tournaments between sports channels in this way is quite common on STV due to the nature of live sport. It allows a channel provider to deliver a wide range of live sports simultaneously by accommodating scheduling conflicts, simultaneous matches in multi-round tournaments, and last-minute changes due to weather and overruns. 41

ASTRA’s submission to the Senate Inquiry proposed that where captioning targets for sports services are averaged out, the minimum requirement per service be reduced from two-thirds to half of the target.42

Other submitters were opposed to the idea that licensees could aggregate their sports targets, arguing this creates confusion for consumers.43 The Age and Disability Discrimination Commissioner submitted to the Senate Inquiry that a reporting mechanism was required to monitor compliance with this new provision and to ensure the two-thirds target was being met.44

The Department’s consultation did not provide options for change to this provision. However, it did propose changes to how the annual targets for subscription television might be calculated.

The ACMA notes previous stakeholder comment about the averaging of sports services and invites submissions on this or any other aspect of the provision.

8.3 Exclusion for time-shifting and high definition servicesRelevant provisions:> s130ZV(5)—exclusion for time-shifting services and high definition services> s130ZVA(4)—exclusion for time-shifting services and high definition services> s130ZW(4)—exclusion for time-shifting services and high definition services> s130ZX(13)—exclusion for time-shifting services and high definition services

These provisions exclude services from contributing to the calculation of annual captioning targets if the service does no more than:

> transmit the same stream of programs that has been previously transmitted on another subscription television service provided by the licensee

simultaneously transmit, in a high definition format, the same stream of programs that is transmitted in a standard definition format on another subscription television service provided by the licensee.

The Explanatory Memorandum that accompanied the introduction of Part 9D in 2012 stated this provision was to ensure that repeat or simulcast services do not count towards the minimum number of services required to be captioned. This would ensure the deaf and hearing-impaired community would be able to access a variety of services with differing content.45

41 ASTRA submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 8 including the footnote on p. 8.42 ASTRA submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 8.43 See, for example, MAA submission p. 3 and ACCAN submission p. 3.44 Age and Disability Discrimination Commissioner submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 3.45 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, pp. 25–6.

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There were no submissions to the Senate Inquiry, Department’s consultation or review of the Captioning Standard about the various provisions that provide these exclusions.

No issues have been identified to date about the operation of these provisions; however, the ACMA invites submissions.

8.4 Exclusion for new subscription television servicesRelevant provisions:> s130ZV(6) exclusion for new subscription television service

This provision allows a new subscription television service to be exempt from the captioning obligations if it predominantly consists of programs not previously transmitted in Australia prior to the commencement of the service.

Appendix A provides information about the number of services that have been exempt from captioning under this provision.

Recent stakeholder commentsIn submissions to the Senate Inquiry, some stakeholders made comments about this provision. The Community and Public Sector Union (CPSU) argued that broadcasters should be encouraged to include captioning from the establishment of a new channel and to build in systems and procedures to make sure that captioning is part of the production process from the beginning.46

The Department’s consultation did not provide options for change to this provision. However, the paper did canvas new up-front exemptions based on audience numbers and channel revenue.47

The ACMA notes previous stakeholder comment about the exclusion for new services and invites submissions on this or any other aspect of the provision.

8.5 Repeat programsRelevant provision:> s130ZZ captioning services for repeats of television programs

This provision specifies that if a program has been broadcast by a licensee with captions, all repeats of the program broadcast by the licensee must also be captioned, regardless of whether the repeat appears on the same service or a different service provided by the licensee.

In 2015, an amendment was made to this provision as part of the Deregulation Bill. Because of this change, the provision only applies to a repeat if the program is supplied by the same channel or part-channel provider. The Explanatory Memorandum accompanying the Deregulation Bill provides the reasoning behind this change:

… in some circumstances the licensee will obtain the same program from two different channel providers. For example, the first version of the program obtained from one

46 CPSU submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 3.47 See the ‘Threshold model’ discussed in the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 22.

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channel provider might already be captioned and therefore the licensee elects to transmit the program with captioning. The second version of the same program obtained from a different channel provider might not have captions included or the included captions might not comply with Australian requirements and therefore it is more burdensome for the licensee to transmit the program with suitable captioning.48

Recent stakeholder commentsSome submitters to the 2014 Senate Inquiry were supportive of the proposed amendment. For example, ACCAN said:

… ACCAN does not believe that this amendment will have any detrimental impact on the amount of repeat closed caption programming.49

Other submitters, however, felt the repeat rule should be removed altogether. For example, Ai-Media commented that the ‘repeat rule’:

… has negative unintended consequences, is impossible to enforce, and is unnecessary given the commercial imperatives on broadcasters to fill their quotas.50

The ACMA notes previous stakeholder comment about repeat programs and invites submissions on this or any other aspect of the provision.

8.6 Simultaneously transmitted programsRelevant provision:> s130ZZAA—captioning services for simultaneously transmitted television programs

This section provides that if a program is captioned and the same program is simultaneously transmitted on a second service, then the simultaneous transmission must also be captioned. The Explanatory Memorandum that accompanied the introduction of Part 9D provided an example to illustrate the intention:

Proposed section 130ZZAA obliges a subscription television licensee who transmits a television program on two subscription television services, simultaneously, to caption the second service if it has captioned the first service. For example, if a program is broadcast on LifeStyleYou with captions, and then simultaneously broadcast on affiliated High Definition (HD) service, LifeStyleHD, the program on the HD will be required to also contain captions.51

There were no submissions to the Senate Inquiry, Department’s consultation or review of the Captioning Standard about this provision.

No issues have been identified to date about the operation of this provision; however, the ACMA invites submissions.

48 Explanatory Memorandum to the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 43.49 ACCAN submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 4.50 Ai-Media submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 6.51 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 30.

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9. Exemption and target reduction ordersRelevant provisions:Free-to-air television

> s130ZUA—exemption orders and target reduction orders—unjustifiable hardship> s130ZUAA—effect of target reduction order

Subscription television

> s130ZY—exemption orders and target reduction orders—unjustifiable hardship> s130ZYA—effect of target reduction order

These provisions allow free-to-air television broadcasters and subscription television licensees to apply to the ACMA for an exemption from the captioning requirement, or a reduction to the captioning requirement, on the grounds that the obligation would impose unjustifiable hardship on a licensee.

An exemption order exempts a specific service (a channel) from the captioning obligations for a set period (the specified eligible period). A target reduction order means that a specific service can have a reduced annual captioning target for a set period (the specified eligible period).

The provision specifies criteria that the ACMA must have regard to when deciding whether to grant an exemption order or target reduction order. These are:> the nature of the detriment> the impact on deaf or hearing-impaired viewers> the financial circumstances of the applicant> the estimated expenditure required if the order is not granted> the extent to which captioning is provided on services provided by the applicant> the likely impact of the failure to make the order on the quantity and quality of

programs provided by the applicant> whether the applicant has applied for exemption orders or target reduction orders

for any other services> other matters that the ACMA considers to be relevant.

For subscription television services, the ACMA must also consider the number of people who subscribe to the service concerned.

Before making an exemption order or target reduction order, the ACMA must make the draft order public and invite submissions on the draft. The ACMA must also publish a final copy of an exemption order or target reduction order on its website.

Appendix A provides information about recent applications for target reduction orders and exemptions.

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Recent stakeholder commentsSome concerns have been raised about the exemption and target reduction process. For example, ASTRA submitted to the 2014 Senate Inquiry that:

… the ACMA should be required to consult with licensees on applications, and have the power to vary the terms of an order sought by a STV licensee (or channel provider) for an exemption or target reduction without requiring the entire process to begin again.52

Changes proposed under discussion in the Department’s consultation may impact the operation of exemption orders and target reduction orders. This is because the ‘threshold model’ contemplated by the Department is designed to simplify the exemption process by replacing exemption orders and target reduction orders with up-front exemptions for channels with low audience numbers or low revenue.53

The Department received a range of submissions about the ‘threshold model’ and is currently considering this issue.54

Noting issues relating to the operation of exemption and target reduction orders are canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions or provide new submissions on the issue.

52 ASTRA submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 11.53 See the ‘Threshold model’ discussed in the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 22.54 See, for example, ACCAN submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 7, MAA submission to the same paper, p. 6 and ASTRA submission to the same paper, pp. 10–12.

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10. The Captioning StandardRelevant provision:> s130ZZA—captioning standards

Division 4 of Part 9D provides that the ACMA may determine standards that relate to the quality of captioning services, defining quality as including: > readability> comprehensibility> accuracy.

As a result of the Deregulation Act, two new provisions relating to the quality standard were added:> the ACMA must consider the differences between providing captioning services for

live and pre-recorded television programs> the ACMA is not authorised to determine that a lower quality of captioning service

is acceptable for a kind of program or program material.

Appendix A provides information about compliance with the Captioning Standard.

Captioning Standard reviewBecause of the March 2015 amendments, the ACMA was required to review the Captioning Standard and vary it as appropriate by 19 March 2016. The focus of the review was on the quality of captioning services in relation to the differences between live and pre-recorded television programs, and television programs that include both live and pre-recorded program materials. The review was focused on the quality of captions and therefore did not consider the broader framework of Division 4 of Part 9D of the BSA.

Recent stakeholder commentsStakeholders have recently made submissions to the Senate Inquiry and the review of the Captioning Standard, about aspects of this framework and these include:> Comment that subsections 130ZZA(2A) and 130ZZA(2B) are unclear and appear

to be contradictory because they provide that while the ACMA may consider the differences between live and pre-recorded programs, it may not determine that a lower quality of captioning service is acceptable.55

> Suggestions for what elements should be considered when determining quality. For example, Deaf Australia submitted to the ACMA’s Captioning Standard review that accessibility, availability, quality, consistency and dignity were relevant.56

The ACMA notes previous stakeholder comment about the framework for quality standards and invites submissions on this or any other aspect of the provision.

55 See, for example, the Free TV submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 8 and the ASTRA submission to the same Inquiry, p. 13.56 Deaf Australia submission, p. 7.

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11. Emergency warningsRelevant provision:> s130ZZB—emergency warnings

This provision requires that if an emergency service agency requests the transmission of an emergency warning, the licensee/broadcaster must:> transmit the whole of the emergency warning in text and speech> if it is reasonably practicable to do so, provide a captioning service for the verbal

commentary that accompanies the emergency warning.

Recent stakeholder commentsIn its response to the Department’s consultation, ACCAN submitted that captions should be mandatory for all emergency broadcasts. ACCAN also submitted that if an Auslan interpreter was present at an emergency warnings broadcast, it should be mandatory for them to be shown in the broadcast, noting they are often ‘cut out’ of the broadcast.57 Deaf Australia submitted that it should be mandatory for an Auslan interpreter to be present at all emergency service announcements.58

The reporting requirements for emergency warnings, as distinct from the rules about the broadcast of emergency warnings, are currently being considered by the Department and are discussed at Chapter 12.

The ACMA notes previous stakeholder comment about the rules for the broadcast of emergency warnings and invites submissions on this or any other aspect of the provision.

57 ACCAN submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 4.58 Deaf Australia submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 7.

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12. Reporting and record-keeping12.1 Annual compliance reportsRelevant provision:> s130ZZC—annual compliance reports

This section provides that free-to-air television broadcasters and subscription television licensees must prepare and give the ACMA a report, within 90 days after the end of each financial year, relating to compliance with:

> captioning obligations> emergency warnings broadcasts> the Captioning Standard.

The report must be in a form approved by the ACMA. In 2015, the ACMA simplified the form of these reports. The focus is now on overall compliance rather than exception reporting on specific captioning obligations. The ACMA must publish the annual compliance reports on its website.

Recent stakeholder commentsThe Deregulation Bill proposed removing the requirement for annual compliance reporting. While some industry stakeholders were supportive of this proposal,59 other stakeholders opposed the change.60 The Age and Disability Discrimination Commissioner submitted that:

The Media Access Review Final Report, published by the Department of Broadcasting, Communications and the Digital Economy in 2012 recommended that the Government prescribe the sections of the BSA that establish mandatory targets for captioning under subsection 47(2) of the Disability Discrimination Act 1992. These changes were subsequently legislated, and the responsibility for investigating complaints regarding breaches of the code shifted from the AHRC to the ACMA.

At the time that the provisions in the BSA were being negotiated, the Commission sought a number of safeguards to ensure that the rights of consumers who are deaf or hearing impaired would be adequately protected under the BSA. The current mandatory reporting requirements were intended to meet this objective by mitigating risks of non-compliance, and have done so.61

At that time (March 2015) annual compliance reporting was not removed from Part 9D.

The more recent Departmental consultation put forward three options in relation to annual reporting requirements:

59 See submissions to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, for example the Free TV submission, SBS submission pp. 3–4 and ABC submission pp. 2–360 See submissions to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, for example, Ai-Media submission p. 7 (proposing an ‘intermediate’ position) Deafness Council WA submission p. 1, ACCAN submission pp. 4–5, MAA submission pp.2–3, Communications Law Centre, UTS submission pp. 2–4 and nine citizen submissions.61 Age and Disability Discrimination Commissioner submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 2.

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1. Removing annual reporting requirements for free-to-air television broadcasters. The Department referred to this change as effectively turning ‘enforcement into a complaints-based model’.62 Noting the importance of consumer safeguards, the Department suggested this removal might necessitate an additional requirement for broadcasters to effectively promote the availability of captioning and relevant complaints mechanisms.

2. Transferring responsibility for compliance reporting for subscription television from the licensee to the channel provider (although the licensee would retain ultimate responsibility for compliance).

3. Removing annual reporting requirements for emergency service warnings (noting that they may only be of marginal benefit to viewers and the ACMA).

Several industry submissions to the Department’s consultation supported the removal of the annual reporting requirements. For example, Free TV argued that annual reporting does not aid viewer transparency and provides limited incentive for compliance, while adding an unnecessary administrative burden.63

SBS submitted:

The current reporting requirements have significant issues, the most important being the time lapse in the annual reporting … this means that often a closed captioning breach may have occurred months before it is published.64

Submissions from advocacy groups expressed concern about removing the annual reporting requirements, noting that it would place the burden of monitoring captioning obligations unduly on consumers.65 Media Access Australia (MAA) commented that compliance reporting means:

… consumers know that a regulated quota is being met and that the regulations designed to protect their interests are being properly and fairly enforced.66

The ABC’s submission also supported retaining the current reporting requirements, noting the recent revisions made to the reporting requirements by the ACMA.67

Noting annual compliance reporting is canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions or provide new submissions on the issue.

12.2 Record-keepingRelevant provision:> s130ZZD—record-keeping requirements

62 Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 13.63 Free TV submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 5.64 SBS submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 2.65 ACCAN submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 3.66 MAA submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 2.67 ABC submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 2.

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Section 130ZZD requires that written records must be made to demonstrate compliance with annual captioning targets. These records must be kept for at least 90 days after the annual compliance report is submitted.

Section 130ZZD also requires that audio-visual records must be made to demonstrate compliance with the Captioning Standard and the obligation to broadcast emergency warnings. These records must be kept for at least 30 days after the program is broadcast or 90 days if a complaint is lodged about the program.

The requirements for audio-visual records were introduced in 2015. Prior to this the record-keeping requirements in the BSA did not distinguish between audio-visual and written compliance records. The Explanatory Memorandum accompanying the Deregulation Bill stated:

Revised section 130ZZD recognises that in practice only written records are required to ascertain whether a free-to-air broadcaster or subscription television licensee has met captioning targets whereas audio-visual records are required to ascertain whether quality standards have been met … 68

Recent stakeholder commentsIn response to the general record keeping requirements, Free TV submitted to the Department’s consultation that while it supported the removal of annual compliance reporting, it considered general record keeping was necessary because it facilitated ACMA investigations.69

The Department’s consultation did not provide options for change to the general record-keeping requirements for captioning targets and the Captioning Standard. However, it did consider the record-keeping requirements for emergency warnings.

The Department noted that some stakeholders had commented that the record-keeping requirements for emergency warnings are unduly burdensome and disproportionate to any benefit derived. It was also noted that completely removing record-keeping requirements for emergency warnings might not provide the ACMA with the ability to investigate complaints adequately. 70

The ACMA notes previous stakeholder comment about the general record-keeping requirements for captioning targets and the Captioning Standard and invites submissions on this or any other aspect of the provision.

Noting issues relating to the record-keeping requirements for emergency warnings are canvassed by the Department’s consultation, consideration will be given to submissions made to the Department in relation to this matter, however stakeholders may wish to supplement previous submissions on this issue, or provide new submissions.

68 Explanatory Memorandum to the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 45. 69 Free TV submission, Captioning regulatory framework policy consultation paper, the Department of Communications and the Arts, December 2015, p. 6.70 Department of Communications and the Arts, Captioning regulatory framework policy consultation paper, December 2015, p. 14.

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13. Licence conditions and the compliance framework13.1 Licence condition Relevant provisions:Schedule 2:> 7(1)(o)—licence condition for commercial television broadcasting licensees.> 10(1)(eb)—licence condition for subscription television broadcasting licensees.> 11(1)(bc)—licence condition for services provided under class licences (relevantly,

this refers to subscription narrowcasters).

Schedule 2 provides that compliance with the Part 9D captioning obligations is a licence condition for free-to-air commercial television broadcasters and subscription television licensees. If a licensee does not comply with these rules, the ACMA’s enforcement options include issuing a remedial direction requiring compliance, accepting an enforceable undertaking, imposing an additional licence condition, or suspending or cancelling a licence.

There were no discrete submissions to the Senate Inquiry, Department’s consultation or review of the Captioning Standard about this issue. However, some submissions to these consultation processes touched on the relatively serious consequences that could flow for breaching a licence condition—for example, in the context of arguing for more flexibility in the regulatory framework (see further discussion in 13.4).

The ACMA’s Annual report 2014–15 noted annual compliance reports indicated a high level of compliance with the annual captioning target requirements during 2013–14.

Where service providers reported breaches of their captioning obligations during 2013–14, these providers took appropriate steps to prevent similar issues recurring, including resolving technical issues, enhancing procedures and undertaking staff training and the ACMA did not take formal enforcement action.

The ACMA notes previous stakeholder comments about issues related to the enforcement of this provision—for example, the treatment of captioning breaches (discussed at section 13.4) and invites submissions on this or any other aspect of the provisions.

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13.2 Compliance: regional broadcastersRelevant provisions:> s130ZL—definition of designated viewing hours> s130ZR—the basic rule> s130ZR(4)—exceptions to the basic rule> s130ZS—special rules for multi-channelled services

Schedule 2:> 7(1)(o)—licence condition for commercial television broadcasting licensees.

Regional broadcasters source programming from metropolitan networks, in addition to providing their own local programming. The metropolitan content is provided on relay under contractual agreement and the regional affiliate may wholly re-transmit that content with no amendment. These broadcasts are referred to in this paper as ‘networked content’.

Regional television licensees are responsible for the captioning of networked content where it is broadcast in the regional broadcaster’s licence area, despite the fact that they have not captioned the programs themselves. This means that if the metropolitan content is found to have breached the Part 9D rules, then both the metropolitan and the regional television licensee are found to be in breach.

Sometimes a problem with captioning may not relate to the metropolitan source. For example, a breach may result from an error within the regional broadcaster’s licence area—such as intermittently absent captions caused by technical problems.

Any change to the compliance framework for regional/networked broadcasters would likely have a flow on effect to the reporting and record-keeping requirements for these licensees.

Recent stakeholder commentsThe Department’s consultation indicated this might be a matter best addressed in the commercial arrangements between a metropolitan network and regional affiliate.71

In its submission to the Department’s consultation, Free TV submitted:

… captioning obligations for regional broadcasters are issues, which continue to expose broadcasters to significant regulatory risk and should be addressed as a priority.72

The ACMA notes previous stakeholder comment about regional broadcasters and invites submission on this or any other aspect of the provisions.

71 Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 24.72 Free TV submission to Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 9.

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13.3 Compliance—linking captioning targets to compliance with the Captioning Standard Relevant provisions:> s130ZZA (4),(5),(6),(7)—free-to-air television broadcasters and subscription

television licensees must comply with the Captioning Standard> s130ZR—each free-to-air television broadcaster must provide captioning as

specified by the basic rule> s130ZV—each subscription television licensee must meet annual captioning

targets

Part 9D provides that free-to-air television broadcasters and subscription television licensees must comply with two key requirements: 1. to provide captioning 2. to comply with the Captioning Standard.

The Explanatory Memorandum that accompanied the introduction of Part 9D stated:

The purpose for developing a captioning standard is to address concerns raised by broadcasters, disability groups and the ACMA regarding the uncertainty surrounding the quality of captioning provided by broadcasters. Captioning standards will obligate broadcasters to provide a consistent quality of captioning services across services and will ensure captioning services are meaningful to the viewer.73

Part 9D does not explicitly link the two key requirements to provide a captioning service and to comply with the Captioning Standard. However, in developing the Captioning Standard, the ACMA took the view, as stated in Clause 5 of the Captioning Standard, that:

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.

Note: In exercising its enforcement powers under the Act, the ACMA takes the position that a program that does not meet the requirements of section 5 of this Standard will not be eligible to be used by a broadcaster or narrowcaster to comply with its captioning obligations.

Recent stakeholder commentsAs noted above, linking compliance with the captioning targets to compliance with the Captioning Standard is not expressly included in Part 9D. However, it is discussed here because the absence of an explicit statutory provision in Part 9D has previously been raised.

Some stakeholders have submitted that compliance with captioning targets should not be linked to whether a licensee has complied with the Captioning Standard. Free TV’s submission to the review of the Captioning Standard, stated:

Free TV does not agree that a failure to provide a captioning service of a certain quality should be treated as a failure to provide a captioning service at all, which is stated in the Note to clause 5. On its face, section 130ZR of the BSA contains no requirement for the captioning service provided to comply with the Captioning 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 Captioning Standard as part of the rule set out at section 130ZR of the BSA.

73 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 31.

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[…] If the legislature had intended that compliance with the Captioning Standard was to be an inherent component of section 130ZR, then this would have been reflected in the section itself, or at least in the relevant extrinsic materials.74

Some submitters to the Senate Inquiry also supported the decoupling of compliance with the Captioning Standard and compliance with captioning targets.75

The ACMA notes previous stakeholder comment about the link between the captioning targets and compliance with the Captioning Standard and invites submissions on this or any other aspect of the provisions.

13.4 Compliance—treatment of breachesRelevant provisions:> s130ZUB—disregard certain breaches of Part 9D (applies to the obligation for free-

to-air television broadcasters to provide captions in accordance with the basic rule) > s130ZZAB—disregard certain breaches of Part 9D (applies to the obligation for

subscription television licensees to meet annual captioning targets)> s130ZZA(7A)—disregard certain breaches of the Captioning Standard

These provisions mean that a breach can be disregarded if it is attributable to significant difficulties of a technical or engineering nature and those difficulties could not reasonably have been foreseen by a licensee/broadcaster. Subsection 130ZZA(7A), relating to breaches of the Captioning Standard, is a relatively new provision and was added to Part 9D in 2015.

With the exception of breaches that fall into this category, and any exemption or target reduction orders that are in place, free-to-air television broadcasters are required to caption 100 per cent of programs between 6 am and 12 pm. Subscription television licensees must meet their annual captioning target, which will gradually increase until there will be a 100 per cent captioning requirement, 24-hours a day, in 2033.

Recent stakeholder commentsSome industry stakeholders have submitted that licensees require more flexibility for compliance with Part 9D obligations. Free TV submitted to the Department’s consultation that:

The requirement to caption 100% of programs on the primary commercial television broadcasting service, coupled with the inherent complexity in providing a captioning service, means that in any given year, most (if not all) commercial free-to-air broadcasters will breach their licence condition requiring compliance with Part 9D. There is no room for error.

At present, broadcasters are reliant on the ACMA using discretion and regulatory forbearance for minor breaches of these licence conditions. This is an unsatisfactory situation which leaves commercial free-to-air broadcasters exposed to very serious sanctions for breaches that may well be unavoidable.76

Ai-Media submitted to the Senate Inquiry that compliance with the Captioning Standard generally should be measured over a period of time. This would include

74 Free TV submission to Review of the Television Captioning Standard: Discussion paper, ACMA, November 2015, p. 6.75 See, for example, the MAA submission, p. 7 and Ai-Media submission, p. 3.76 Free TV submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 9.

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demonstrated evidence of a commitment to systemic and continual improvements to captioning quality.77

Ai-Media also submitted there should be more flexibility for breaches of the Captioning Standard due to unforeseen technical difficulties. It submitted that reporting small outages was costly. It proposed that a benchmark of 99.5 per cent should be set, and that any failure to comply with Part 9D captioning obligations should be disregarded where the outage (or total lost time) did not exceed 0.5 per cent.78

Free TV submitted to the Senate Inquiry that the reference to ‘technical or engineering nature’ should be removed from the current provisions in order to accommodate other unforeseen difficulties that affect a captioning service. Further, Free TV submitted that in considering such breaches, the ACMA should take into account whether or not the broadcaster had acted reasonably and honestly in their provision of the captioning service.79

Free TV has also commented on the treatment of captioning failure that only occurs in part of a licence area (a partial licence area failure). This is relevant to broadcasters that rely on more than one transmitter and translator in each licence area. For example, a technical fault may occur at a small translator and affect a small portion of the licence area, yet that fault will contribute to an overall lower level of compliance for the entire licence area. Free TV proposes that this matter be addressed by amending Part 9D to state that a licensee’s compliance will be measured with reference to the majority of their licence area.80

Other stakeholders were not supportive of greater flexibility for captioning breaches. Deaf Australia submitted to the Senate Inquiry that increased flexibility could lead to broadcasters absolving themselves from their responsibility to monitor captions.81

The ACMA notes previous stakeholder comment about the treatment of breaches and invites submissions on this or any other aspect of the provisions, including consideration of whether breaches of the Part 9D captioning targets should be treated any differently to breaches of the Captioning Standard.

13.5 Complaints processRelevant provision:> Part 9D does not include provisions about captioning complaints.

If a person believes that a free-to-air commercial television broadcasting licensee or a subscription television licensee has breached the captioning rules, they currently complain directly to the ACMA.82 Alternatively, a complainant may sometimes contact the licensee in the first instance, particularly if they think the captioning problem is a

77 Ai-Media submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 3.78 Ai-Media submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 9.79 Free TV submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, pp. 9–11.80 Free TV submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 10.81 Deaf Australia submission to the Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 10.82 Section 147 of the BSA allows a person to make a complaint to the ACMA about a breach of a licence condition.

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technical one that could be fixed by the broadcaster—for example, if the captions are dropping in and out.

If a person believes that a national broadcaster has breached the captioning rules, they currently complain directly to the Australian Broadcasting Corporation (ABC) or Special Broadcasting Service (SBS) within six weeks of the broadcast. If they do not receive a response within 30 days, or are not satisfied with the response, they may complain to the ACMA.83

Although the complaints process is not covered by Part 9D of the BSA, it is discussed here as it has previously been raised as an issue for caption users.

Appendix A provides information about recent captioning complaints made under Part 9D.

Appendix C outlines current information on the ACMA website about lodging a captioning complaint.

Recent stakeholder commentsCaption users and advocacy groups have previously commented about the difficulty in lodging a complaint about captioning. Deaf Australia submitted to the Department’s consultation that:

… the current complaint protocol is not user friendly and many members of the community are unaware of how to make formal complaints. Some members have reported that their experience with the complaint process has left them alienated due to broadcasters providing a ‘standard’ response, leaving consumers feeling that there is nothing they can do to improve the quality of captioning.84

Dissatisfaction with the complaints process was expressed by ACCAN in its submission to the review of the Captioning Standard:

Our consultation with members of the Deaf and hearing impaired communities indicates that there is a strong level of complaint-fatigue regarding captioning on Australian television. ACCAN believes that the reasons for this fatigue are manifold; consumers have been making complaints about captioning for many years with only incremental progress, the methods for lodging complaints about poor quality captions are onerous and unclear for many consumers, complaint outcomes rarely result in tangible improvements, and the time it takes the ACMA to resolve a complaint is too long.85

A timelier process is also identified as a priority for captioning users, with MAA submitting to the Senate Inquiry that:

Consumers are generally not interested in making complaints that then lead to a detailed, legalistic investigation and reporting system ... Generally they want the problem acknowledged, logged and hopefully fixed.86

Several submitters noted that making a complaint was hampered by the complexity of the captioning regulation and because the regulation was not well known.87 For example, one submitter noted:

83 Subsection 150(2), of the BSA means a person can make a complaint to the ACMA about a breach of the Part 9D rules. 84 Deaf Australia submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 3.85 ACCAN submission to the ACMA’s review of the Captioning Standard, December 2015, p. 1.86 MAA submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 7.

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Unfortunately I’m unable to state with any real certainty whether a program that is broadcast on a multi-channel is first, a repeated program, and second, one that was previously shown on that multi-channel’s primary channel.88

Some industry submitters have suggested that consumers should complain to the broadcaster in the first instance—taking their complaint to the ACMA if not satisfied with the response. Free TV submitted to the Department’s consultation that contacting the broadcaster directly will often be the most efficient and effective way of having a captioning error rectified.89

The ACMA notes previous stakeholder comment about the complaints process and invites submissions, including any comments about the resources referred to in Appendix C.

87 See, for example, the Age and Disability Discrimination Commissioner submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 2, the Communications Law Centre submission to the same Inquiry, p. 3, and the MAA submission to the same Inquiry, p. 2.88 Michael Lockrey submission to the 2014 Senate Inquiry into the Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014, p. 4.89 Free TV submission to the Captioning regulatory framework policy consultation paper, Department of Communications and the Arts, December 2015, p. 5.

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14. Part 9D draftingThe ACMA notes there is an inherent complexity to the provisions in Part 9D. There may be an opportunity during this review to amend or simplify how some provisions are drafted.

Recent stakeholder commentsAn example of drafting that has been commented on by submitters is the wording at section130ZR about exceptions to the basic rule for free-to-air television broadcasters.

The Explanatory Memorandum that accompanied the introduction of the Part 9D rules stated that if a program had premiered with captions on a core or primary service and was repeated on a multi-channelled service, it must be captioned on the multi-channelled service as well.90

In its submission to the 2012 Senate Inquiry into the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, SBS noted that:

The exemption for multi-channelled services could be stated better. The exemption … provides that captioning is not required on multi-channelled services with the exception of programs that have premiered on the core or primary service with captions and are repeated on a multi-channel service … The current draft does not directly state this. 91

In its final report, the Senate Committee agreed, stating:

The committee sees merit in the SBS's suggestion for clarification of the exemption where a program that was premiered with captions is repeated on a multichannel. The committee therefore recommends that the government consider amending the bill to include the words 'with captions' following the words 'previously transmitted' in subsections 130ZR(4)(f), (5)(e), (6)(e) and (f), and (7).92

The ACMA notes there may be other aspects to the drafting of Part 9D that stakeholders consider could be made more explicit to put the intended meaning beyond doubt.

The ACMA notes previous stakeholder comment about the drafting of Part 9D and invites submissions on this or any other aspect of the drafting of the Part 9D provisions.

90 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, pp. 14–15.91 SBS submission to the 2012 Senate Inquiry into the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 3.92 The Senate Environment and Communications Legislation Committee Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012, p. 19.

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Invitation to commentThe ACMA invites comments on the issues set out in this consultation paper.

For the ease of submitters, Table 1 in Chapter 5 summarises the key captioning rules and compliance frameworks on which the ACMA’s statutory review is focussed. It flags areas where the ACMA is already aware of stakeholder concern. However, interested parties are invited to submit on any matter covered by the terms of reference.

Making a submission> Online submissions —submissions can be made via the comment function or by

uploading a document. The online consultation page provides details.> Email submissions—you can send a submission or comment to:

captioningreview@acma.gov.au.> Submissions by post—can be sent to:

The ManagerContent, Projects and Policy SectionBroadcasting Safeguards BranchAustralian Communications and Media AuthorityPO Box Q500Queen Victoria Building NSW 1230

The closing date for submissions is COB, Friday 22 July 2016.

Electronic submissions in Microsoft Word or Rich Text Format are preferred.

Enquiries> Consultation enquiries can be emailed to captioningreview@acma.gov.au.> Media enquiries can be directed to Emma Rossi on 02 9334 7719 or by email to

media@acma.gov.au.

Effective consultation The ACMA is working to enhance the effectiveness of its stakeholder consultation processes, which are an important source of evidence for its regulatory development activities. To assist stakeholders in formulating submissions to its formal, written consultation processes, it has developed Effective consultation—a guide to making a submission. This guide provides information about the ACMA’s formal written public consultation processes and practical guidance on how to make a submission.

Publication of submissionsIn general, the ACMA publishes all submissions it receives. The ACMA prefers to receive submissions that are not claimed to be confidential. However, the ACMA accepts that a submitter may sometimes wish to provide information in confidence. In these circumstances, submitters are asked to identify the material over which confidentiality is claimed and provide a written explanation for the claim.

The ACMA will consider each confidentiality claim on a case-by-case basis. If the ACMA accepts a claim, it will not publish the confidential information unless authorised or required by law to do so.

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Release of submissions where authorised or required by lawAny submissions provided to the ACMA may be released under the Freedom of Information Act 1982 (unless an exemption applies) or shared with various other government agencies and certain other parties under Part 7A of the Australian Communications and Media Authority Act 2005. The ACMA may also be required to release submissions for other reasons including for the purpose of parliamentary processes or where otherwise required by law (for example, under a court subpoena). While the ACMA seeks to consult submitters of confidential information before that information is provided to another party, the ACMA cannot guarantee that confidential information will not be released through these or other legal means.

PrivacyThe Privacy Act 1988 imposes obligations on the ACMA in relation to the collection, security, quality, access, use and disclosure of personal information. These obligations are detailed in the Australian Privacy Principles.

The ACMA may only collect personal information if it is reasonably necessary for, or directly related to, one or more of its functions or activities.

The purposes for which personal information is being collected (such as the names and contact details of submitters) are to: contribute to the transparency of the consultation process by clarifying, where

appropriate, whose views are represented by a submission

enable the ACMA to contact submitters where follow-up is required or to notify them of related matters (except where submitters indicate they do not wish to be notified of such matters).

The ACMA will not use the personal information collected for any other purpose, unless the submitter has provided their consent or the ACMA is otherwise permitted to do so under the Privacy Act.

Submissions in response to this paper are voluntary. As mentioned above, the ACMA generally publishes all submissions it receives, including any personal information in the submissions. If a submitter has made a confidentiality claim over personal information which the ACMA has accepted, the submission will be published without that information. The ACMA will not release the personal information unless authorised or required by law to do so.

If a submitter wishes to make a submission anonymously or use a pseudonym, they are asked to contact the ACMA to see whether it is practicable to do so in light of the subject matter of the consultation. If it is practicable, the ACMA will notify the submitter of any procedures that need to be followed and whether there are any other consequences of making a submission in that way.

Further information on the Privacy Act and the ACMA’s privacy policy is available at www.acma.gov.au/privacypolicy. The privacy policy contains details about how an individual may access personal information about them that is held by the ACMA, and seek the correction of such information. It also explains how an individual may complain about a breach of the Privacy Act and how the ACMA will deal with such a complaint.

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Appendix A: Compliance data and other informationCompliance with captioning targetsFree to air televisionFree-to-air broadcasters achieved a high level of compliance with their captioning targets in 2014-15. Based on their annual captioning reports:> For free-to-air television services, 92 out of 95 each achieved between 99.75 per

cent and 99.99 per cent captioning on their primary channels between 6 am and midnight each day. The captioning shortfalls were approximately four hours per service, across the 6,570 hours between 6 am and midnight each day in 2014–15.

> Each of these broadcasters reported that steps had subsequently been taken towards addressing the breaches or unforeseen technical or engineering issues, including repairing or replacing faulty equipment, staff training and improved processes and procedures. Therefore, the ACMA did not take any enforcement action in relation to these matters.

> The remaining three services exceeded their reduced annual captioning target of 90 per cent each for 2014–15. These three services had target reduction orders in place for the year, on the grounds of unjustifiable hardship.

Information about compliance with captioning targets in 2013–1493 and 2012–1394 and further information about compliance in 2014-1595 is available on the ACMA website.

Subscription televisionSubscription television licensees achieved a high level of compliance with their captioning targets in 2014–15. Based on their annual captioning reports:> Approximately 99.5 per cent of subscription television services (660 out of 663) met

their annual captioning targets for the year. > Approximately 67 per cent of subscription television services (446 out of 663)

exceeded their annual captioning target.> Three services (involving two distinct channels) did not meet the annual captioning

target for 2014–15 because of significant technical difficulties or procedural issues. > The three licensees concerned indicated that adequate steps had been taken to

prevent similar breaches happening again, including resolving technical issues and improved processes and procedures. Therefore, the ACMA did not take any enforcement action in relation to these matters.

Information about compliance with captioning targets in 2013–1496 and 2012–1397 and further information about compliance in 2014-1598 is available on the ACMA website.

93 www.acma.gov.au/theACMA/free-to-air-television-annual-captioning-compliance-results-2013-14 94 www.acma.gov.au/theACMA/annual-captioning-compliance-results-free-to-air-television-broadcasters-2012-13 95 www.acma.gov.au/theACMA/2014-15-annual-captioning-compliance-results-free-to-air-television96 www.acma.gov.au/theACMA/2013-14-annual-captioning-compliance-results-subscription-television 97 www.acma.gov.au/theACMA/annual-captioning-compliance-results 98 www.acma.gov.au/theACMA/2014---2015-annual-captioning-compliance-results-subscription-television

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Captioning investigationsIn 2014–15, the ACMA finalised eight investigations. Of these:> three resulted in breach findings—two relating to the quality of captions and one

relating to missing captions during a news program> five resulted in no breaches—relating to the quality of captions and missing

captions during programsIn 2013–14, the ACMA finalised 13 investigations. Of these:> Three investigations resulted in breach findings—relating to the quality of captions

and missing captions during programs.> Three investigations resulted in breach findings that were disregarded due to being

caused by unforeseen and significant technical or engineering difficulties.> One investigation resulted both in a breach finding and a disregarded breach

finding. The breach finding relating to the quality of captions could not be disregarded at this time.

> Four investigations resulted in no breaches—relating to the quality of captions and missing captions during programs.

> Two investigations were concluded with no finding (due to insufficient evidence).

In 2012–13, the ACMA finalised nine investigations. Of these:> Seven resulted in breach findings—two relating to lack of captioning and five

relating to caption quality and missing captions during programs. > Two resulted in no breaches—relating to the quality of captions.

Exemption and target reduction ordersIn 2014–15, the ACMA made 72 exemption orders and four target reduction orders.

The 72 exemption orders were for three subscription television licensees and the four target reduction orders were for one subscription television licensee.

In 2013–14, the ACMA made 41 exemption orders for four subscription television licensees.

In 2012–13, the ACMA made 82 exemption orders and five target reduction orders. The 82 exemption orders were for seven subscription television licensees. The five target reduction orders were for two subscription television licensees and two commercial television broadcasters.

The ACMA met the statutory requirement to make a decision on each application for exemption orders and target reduction orders within 90 days of receiving the applications.

Information about the exemptions and target reductions made by the ACMA is available on the ACMA website.99

Exclusions for new servicesIn 2014–15, 12 subscription services were exempt from captioning under this provision. Data from 2014–15 is currently the only information available, because this provision was introduced in March 2015.

99 www.acma.gov.au/theACMA/final-exemption-orders-and-target-reduction-orders

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Appendix B: Calculating annual captioning targets for subscription televisionTable 2: Annual targets for each subscription service category

Category Allocation of each category*

2015–16 target

Date 100% target reached

Movie service A 1st to 6th service 80% 1 July 2019

Movie service B 7th service 60% 1 Jul 2023

Movie service C 8th to remainder of services 50% 1 July 2025

General entertainment service A

1st to 18th service 60% 1 July 2023

General entertainment service B

19th to 34th service 50% 1 July 2025

General entertainment service C

35th to remainder of services 30% 1 July 2029

News service – 20% 1 July 2031

Sports service – 20% 1 July 2031

Music service – 10% 1 July 2033

* The platform provider decides which of its services will fall into each of the three movie and general entertainment categories.

When a platform provider transmits a channel, it is known as a service. The targets in Part 9D apply to a service (rather than a channel). This is an important distinction; because it means the Part 9D rules do not apply equally to the one channel regardless of where it is transmitted. For example, a movie channel could be transmitted by one provider and be categorised as ‘Movie service A’ with a requirement to caption 80 per cent of programs, whereas the same channel could be broadcast by another provider and categorised as ‘Movie service C’ with a requirement to only caption 50 per cent of programs.

Exemptions for certain services before 1 July 2022Section 130ZX provides that certain services can be exempt from the captioning obligations, for a limited period.

Each genre has a threshold number of services that cannot be exempt under this provision. The thresholds are:> movie—11 services > general entertainment—43 services > news—three services > sports—seven services> music—six services.

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Licensees that have met the annual captioning target for the year for at least the threshold number of services may nominate the exemption for the remaining services (the excess services).

The legislation is not prescriptive about which categories must be included in the threshold number of services. For example, a licensee with 20 movie services could hypothetically nominate ‘Movie service C’ (those with the lowest captioning obligation) as threshold services that must be captioned. However, licensees are not following this practice and are ensuring the threshold services comprise categories with the highest obligations (‘Movie service A’ and ‘Movie service B’).

This is a transitional measure that ends in 2022. Table 3 illustrates how the exemption percentage deceases over time, until it ceases on 1 July 2022.

Table 3: How the section 130ZX exemption decreases over time

Date Exemption

1July 2012 100% of excess services are exempt

1July 2015 80% of excess services are exempt

1July 2017 60% of excess services are exempt

1July 2019 40% of excess services are exempt

1July 2021 20% of excess services are exempt

1July 2022 0% of excess services are exempt

A hypothetical example to illustrate the section 130ZX calculationA subscription television licensee has 21 movie services (channels). The licensee nominates 11 services to be threshold services and these must meet the annual captioning target. The licensee may apply to have the remaining 10 services (the excess) exempt from the annual captioning target.

Financial year How many of the excess services are exempt from captioning?

Of the 21 movie services, how many must meet the captioning target?

2013–14 all 11

2015–16 8 13

2017–18 6 15

2019–20 4 17

2021–22 2 19

From July 2022 0 21

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Appendix C: Information for consumers—how to make a complaintInformation about making a complaintThe ACMA’s website includes information about how to make a captioning complaint. You can find it at www.acma.gov.au/Citizen/Consumer-info/Rights-and-safeguards/Captioning/complaints-about-captioning-i-acma-1.

The website also includes two videos with Auslan translation and captions.

Who should you contact first?To make a complaint about captioning you can complete the following steps:> for complaints about commercial or subscription TV, contact the ACMA> for complaints about the national broadcasters, contact the ABC or SBS in the first

instance. If you don't receive a response within 30 days, or you're not satisfied with the response, you can refer your complaint to the ACMA.

Step-by-step: how to lodge a complaint with the ACMAYou can send an email to broadcasting@acma.gov.au or you can fill in the ACMA’s online complaint form. This is available by selecting ‘Make a complaint’ from the ACMA’s home page www.acma.gov.au and following the links. The screenshots below demonstrate how you access the online complaints form.

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1. Go to the ACMA’s home page www.acma.gov.au and select ‘Make a Complaint’ at the bottom of the page:

2. Select ‘Broadcasting complaints’ at the top right of the screen:

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3. Click the ‘broadcasting complaint form’ link to access the online form and lodge a complaint:

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