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Investigation Report No. 2737File no. ACMA2011/1992

Licensee NBN Limited

Station NBN

Type of service Commercial television

Name of program The Mentalist

Date of broadcast 19 December 2011

Relevant legislation Clauses 7(1)(o) of Schedule 2 and 38(1) of Schedule 4 to the Broadcasting Services Act 1992

Date finalised 2 March 2012

Decision No breach clauses 7(1)(o) of Schedule 2 and 38(1) of Schedule 4 to the Broadcasting Services Act 1992.

ACMA Investigation Report – The Mentalist broadcast on 19 December 2011

The complaintOn 19 December 2011, the Australian Communications and Media Authority (ACMA) received a complaint asserting that the licensee of NBN, NBN Limited (the licensee), failed to provide adequate captioning for The Mentalist broadcast the same day. The licensee is part of the Nine Network.

As this complaint relates to a licence condition, the complaint was able to be made directly to the ACMA without written reference to the licensee. Nevertheless, the complainant complained to the licensee in the first instance and not being satisfied with the licensee’s response, subsequently referred the matter to the ACMA for consideration.

The ACMA has investigated the licensee’s compliance with clauses 7(1)(o) of Schedule 2 and 38(1) of Schedule 4 to the Broadcasting Services Act 1992 (the Act) in accordance with sections 147 and 149 of the Act. 1

AssessmentThe assessment is based on:

> a submission by the complainant;

> two submissions from the licensee’s representative; and

> a copy of the broadcast, provided by the licensee to the ACMA.

Other sources consulted have been identified where relevant.

Issue: Did the licensee provide a captioning service for the broadcast of The Mentalist on 19 December 2011?

Relevant provisionsClauses 7(1)(o) of Schedule 2 and 38 of Schedule 4 to the Act are set out at Attachment A.

Complainant’s submissions The complainant submitted to the ACMA on 19 December 2011:

[...]

I would like to submit a complaint regarding no captions / poor / sub-standard closed captions on NBN (Far North Coast of NSW) on "The Mentalist" (at 8:30pm).

Initially there was no captions at all - and I've taken video footage to prove this fact.

Then, about 5 or 10 minutes in, closed captions started, but they were sub-standard "block" captions which were 2 seconds after the relevant audio track.

[...]

1 Sections 147 (b) and 149 of the Broadcasting Services Act 1992 set out the ACMA’s role in investigating complaints about breaches of a licence condition.

ACMA Investigation Report – The Mentalist broadcast on 19 December 2011 of 10

NBN’s submissionNBN’s letter to the ACMA, dated 11 January 2012, included the following:

[...]

Nine maintains it provided a caption service for the Program in accordance with the Act. In light of the fact that a captioning service was provided for the Program, at no time did Nine contravene the provisions of the Act.

[...]

NBN’s 20 February 2012 submission to the ACMA included the following:

The caption file was purchased from the US by [caption service provider], our service provider and cued live to air. So the caption method used was a hybrid of offline and live captioning. While the captions were pre-prepared they were cued out live as the program went to air.

The location of the captions on screen indicated who the speaker was, following the US convention. Nine maintains the location of the captions when there were multiple speakers worked to adequately identify the speaker.

Finding The ACMA is of the view that the licensee, in relation to the broadcast of The Mentalist on 19 December 2011, did not breach clause 7(1)(o) of Schedule 2 to the Act.

ReasonsThere is no dispute that the licensee was required to provide a captioning service for the program as it was broadcast during prime viewing hours.

The term ‘captioning service’ is not defined in the Act, nor is what is regarded as acceptable quality for a captioning service.

The ACMA assessed whether the program would be comprehensible to a person relying on those captions, using the quality indicators of captioning set out in Attachment B as a guide.

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

The complainant submitted, amongst other things, that the captioning was initially nonexistent but that after five or ten minutes of broadcast, they commenced in a sub-standard way.

Several ACMA assessors, independently, reviewed the program without sound and also undertook a comparative assessment of the soundtrack and the captions that were provided by the licensee.

The ACMA notes that the copy of the broadcast it received from the licensee showed that captioning was provided at the start and throughout the broadcast. The ACMA also understands that various factors may affect the reception of captions by television viewers. As a result, and in absence of any contrary evidence, the ACMA formed the view that captioning was provided from the start of the broadcast. However, the ACMA found that there was a slight and consistent delay in the display of captions during the 60 minute broadcast. The majority of captions were accurate although there were minor instances of missed dialogue during the program. For example, no


captioning was provided when one of the characters said ‘No kidding’ during the inspection of the crime scene early in the program. Due to the relatively steady speed at which the dialogue was spoken, the majority of the captions were delayed by approximately 2 seconds or less. During the few scenes which were fast-paced, the dialogue was delayed by up to 4 seconds. The ACMA acknowledges that the delay in the display of captions would have impacted on the enjoyment of the program for a person relying on those captions. However, lengthy non-verbal pauses between scenes resulted in the majority of the dialogue being contained in the relevant scene. Further clarity was provided by the positioning of captions for various speakers relative to their position in scenes and available space on screen. Therefore, it is the ACMA’s view that the relationship between sound components and visual components was adequately preserved for viewers who relied on captions.

The ACMA is of the view that the captions, on balance, adequately relayed the plot of the program, information about who was speaking and sound effects important to making sense of the program.

Accordingly, the ACMA finds that the licensee did not breach clause 7(1)(o) of Schedule 2 to the Act by failing to provide a captioning service under clause 38(1) of Schedule 4 to the Act.


ATTACHMENT AFrom Schedule 2 to the Broadcasting Services Act 1992 Part 3—Commercial television broadcasting licencesDivision 1—General7 Conditions of commercial television broadcasting licences

(1)Each commercial television broadcasting licence is subject to the following conditions:

[...]

(o) if clause 38 of Schedule 4 (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that clause.

...

From Schedule 4 to the Broadcasting Services Act 1992 Division 3 -- Captioning

38 Captioning

Basic rules

(1) Subject to this clause, each commercial television broadcasting licensee ... must provide a captioning service for:

(a) television programs transmitted during prime viewing hours; and (b) television news or current affairs programs transmitted outside prime viewing

hours.

(2) Subclause (1) does not require the provision by a commercial television broadcasting licensee of a captioning service for a television program covered by paragraph 6(8)(d).

[...]

(4) If:

(a) a commercial television broadcasting licence is in force; and (aa) the licence was not allocated under section 38C; and (b) the licensee provides a core/primary commercial television broadcasting service

in the licence area; and (c) the licensee provides: (i) a SDTV multi-channelled commercial television broadcasting service; or (ii) a HDTV multi-channelled commercial television broadcasting service; in the licence area; then, before the end of the final digital television switch-over

day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(d) the SDTV multi-channelled commercial television broadcasting service; or (e) the HDTV multi-channelled commercial television broadcasting service; unless

the program has been previously transmitted on the core/primary commercial television broadcasting service


(4A) If:

(a) subsection 41B(2), (2C) or (2CB) applies to a commercial television broadcasting licence; and

(c) the licensee provides a SDTV multi-channelled commercial television broadcasting service that is the licensee’s primary commercial television broadcasting service; and

(d) the licensee provides: (i) another SDTV multi-channelled commercial television broadcasting service;

or (ii) a HDTV multi-channelled commercial television broadcasting service; then,

before the end of the final digital television switch-over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(e) the other SDTV multi-channelled commercial television broadcasting service; or (f) the HDTV multi-channelled commercial television broadcasting service; unless the

program has been previously transmitted on the primary commercial television broadcasting service.

(4B) If:

(a) a commercial television broadcasting licence is allocated under section 38C; and

(b) the licensee provides a primary commercial television broadcasting service in the licence area; and

(c) the licensee provides in the licence area: (i) another SDTV multi-channelled commercial television broadcasting service;

or (ii) a HDTV multi-channelled commercial television broadcasting service; then,

before the end of the final digital television switch-over day, subclause (1) does not require the provision of a captioning service for a television program transmitted on:

(d) the other SDTV multi-channelled commercial television broadcasting service; or (e) the HDTV multi-channelled commercial television broadcasting service; unless

the program has been previously transmitted on the primary commercial television broadcasting service.

[...]

(6) Subclause (1) does not require the provision of a captioning service by the licensee of a commercial television broadcasting licence that was allocated under subsection 40(1) during:

(a) the first year of operation of the licence; or (b) if the ACMA, by written notice given to the licensee, allows a longer period—that

longer period.

(7) Subclause (1) does not require the provision of a captioning service for:

(a) a television program, or a part of a television program, that is wholly in a language other than English; or

(b) a television program, or a part of a television program, the audio component of which consists only of music that has no human vocal content that is recognisable as being in the English language; or


(c) so much of the audio component of a television program as consists of incidental or background music.

(8) For the purposes of paragraphs (7)(a) and (b), disregard minor and infrequent uses of the English language.

Special rules

(9) If:

(a) a commercial television broadcasting licence is in force; and (aa) the licence was not allocated under section 38C; and (b) before the end of the final digital television switch-over day, the licensee transmits

a television program on: (i) a SDTV multi-channelled commercial television broadcasting service; or (ii) a HDTV multi-channelled commercial television broadcasting service; in the licence area; and (c) the program has been previously transmitted on another commercial television

broadcasting service provided by the licensee in the licence area; and (d) the licensee provided a captioning service for the program when the program was

so previously transmitted on the other service; the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b).

(9A) If:

(a) a commercial television broadcasting licence is allocated under section 38C; and (b) before the end of the final digital television switch-over day, the licensee transmits

a television program on: (i) a SDTV multi-channelled commercial television broadcasting service; or (ii) a HDTV multi-channelled commercial television broadcasting service; in the licence area; and (c) the program has been previously transmitted on another commercial television

broadcasting service provided by the licensee in the licence area; and (d) the licensee provided a captioning service for the program when the program was

so previously transmitted on the other service; the licensee must provide a captioning service for the television program transmitted as mentioned in paragraph (b).

[...]

Prime viewing hours

(11) For the purposes of subclause (1), prime viewing hours are the hours:

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

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


From Section 6 of the Broadcasting Services Act 1992 :

"commercial television broadcasting licence" means a licence under Part 4 to provide: (aa) in the case of a licence allocated under section 38C—the commercial television broadcasting services that, under section 41CA, are authorised by the licence; or (a) in the case of a licence allocated under subsection 40(1)—a commercial television broadcasting service; or (b) in any other case—the commercial television broadcasting services that, under section 41B or 41C, are authorised by the licence."commercial television broadcasting service" means a commercial broadcasting service that provides television programs.


ATTACHMENT B

CONSIDERATIONS – THE QUALITY OF CAPTIONING

Introduction

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

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

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

Quality Indicators

Grammar and Presentation

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

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

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

iii. sentence case is used where practical;

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

v. repetition of information that is already on the screen (such as the name of a presenter or temperatures in a weather report) is avoided;

vi. as far as practicable, closed captions do not overlap or impede any text based information already on the screen.

Timing and Editing


i. closed captions coincide with the relevant soundtrack, so that the relationship between sound and visuals is preserved for the viewer;

ii. closed captions stay as close as possible to the original wording while allowing the viewer enough time to read the captions and still watch the action of the program;

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

iv. having regard to the intended audience, text reduction remains faithful to the script, and vocabulary and sentence structure is preserved as much as possible;

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


vi. closed captions are not consistently more than three lines in length (the preference is for one-line or two-line captions to be used);

vii. during live closed captioning:

a) captions coincide as closely as possible with the relevant soundtrack, so that the relationship between the visuals and the sound is preserved for the viewer;

b) the priority is always to transcribe as much of the spoken content of the program as possible is transcribed.

Identification of Different Speakers

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

Colour and Font


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

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

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

Positioning


i. as far as possible, positioning of closed captions avoids obscuring important information on the screen, such as action, superimposed text, graphic text descriptors or activities, or the speaker’s lips.

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

Sound Effects


i. any noise or music that enhances the visuals, contributes to characterisation or adds atmosphere, is captioned;

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


nbn - acma investigation report 2737/media/broadcasting investig… · web viewthe mentalist....

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