Investigation Report No. 2950
File No. / ACMA2013/127Licensees / TCN Channel Nine Pty Ltd, General Television Corporation Pty Ltd
Stations / TCN, GTV
Type of Service / Commercial Television
Name of Program / the Big Bang Theory
Date/s of Broadcast / 9 January 2013
Relevant Legislation/Code / · subsection 130ZR(1) of Part 9D (captioning) of the Broadcasting Services Act 1992 (the BSA)
· paragraph 7(1)(o) of Schedule 2 to the BSA (captioning)
· subsection 130ZUB(1) of the BSA (disregard breach)
Date finalised / 11 July 2013
Decision / · Breach: subsection 130ZR(1) of Part 9D (captioning) of the Broadcasting Services Act 1992 (the BSA)
· Pursuant to subsection 130ZUB(1) of the BSA, breach of subsection 130ZR(1) disregarded
· No Breach: paragraph 7(1)(o) of Schedule 2 to the BSA (captioning) (as subsection 130ZUB(1) of the BSA applicable)
The complaint
On 9 January 2013, the Australian Communications and Media Authority (ACMA) received a complaint alleging that TCN Sydney of the Nine Network (Nine) failed to provide a captioning service for the program the Big Bang Theory broadcast on 9 January 2013 at 7.30pm.
As this complaint related to an alleged breach of a licence condition, the complaint was able to be made directly to the ACMA without written reference to the licensees. The ACMA has investigated the licensee’s compliance with subsection 130ZR(1) of the BSA, considered the application of subsection 130ZUB(1) of the BSA to determine whether any breach found should be disregarded and considered whether the licensees has breached paragraph 7(1)(o) of Schedule 2 to the BSA in accordance with sections 147 and 149 of the BSA.[1]
Following Nine’s admission that the same captioning issue also affected GTV Melbourne during the same broadcast, the ACMA has extended the investigation to include GTV, under section 170 of the BSA.[2]
The program
The Big Bang Theory is a half hour USA-made comedy sitcom broadcast Monday to Friday at 7.30pm on Nine’s primary channels, including TCN and GTV. With the fictional setting in an apartment shared by young high achieving academics, the entertainment is mainly generated from the academics’ quirky interpretation of the world around them. Their outlook is then contrasted with that of their neighbour’s, a waitress who is both simple and wise.
Assessment
This investigation is based on submissions from the complainant and Nine, and a copy of the broadcast on TCN, provided to the ACMA by the licensee. Other relevant sources relied upon have been de-identified where relevant in the report.
Issue 1: Did the licensees provide a captioning service for the broadcast of the Big Bang Theory on 9 January 2013?
Relevant provision
Clause 7 of Schedule 2 of the BSA
Conditions of commercial television broadcasting licences
1. [...]
(o) if a provision of Part9D (which deals with captioning of television programs for the deaf and hearing impaired) applies to the licensee—the licensee will comply with that provision;
Part9D—Captioning of the BSA
Division1—Introduction
130ZL Designated viewing hours
Programs transmitted before 1July 2014
(1) For the purposes of the application of this Part to programs transmitted before 1July 2014, designated viewing hours are the hours:
(a) beginning at 6 pm each day or, if another time is prescribed, beginning at that prescribed time each day; and
(b) ending at 10.30 pm on the same day or, if another time is prescribed, ending at that prescribed time on the same day.
Division2—Captioning obligations of commercial television broadcasting licensees and national broadcasters
Subsection 130ZR(1):
Each commercial television broadcasting licensee, and each national broadcaster, must provide a captioning service for:
(a) television programs transmitted during designated viewing hours; and
(b) television news or current affairs programs transmitted outside designated viewing hours.
Complainant’s submission
On 9 January 2013, the ACMA received a complaint alleging that no captions were provided during the broadcast of the Big Bang Theory (the program) on 9 January 2013.The complaint specified the double episode of the program from 7.30pm to 8.30pm.
Licensees’ submissions
Nine’s first response to the ACMA, dated 7 February 2013, included the following:
[...]
The Program under investigation comprises two episodes, 7:30pm-8:00pm (‘First Episode’) and 8:00pm-8:30pm (‘Second Episode’). The complainant describes the above episodes as having ‘no captions at all’ however after investigation, we confirm this is not the case as captions were present in the First Episode and the Second Episode had intermittent captions due to unforeseen technical difficulties and therefore should not [be] considered a breach under the Act [BSA]....
First Episode
Nine confirms that the First Episode was broadcast with captions and therefore complies with the Act [BSA].
Second Episode
...Nine confirms that the Second Episode was broadcast with intermittent captions.
Nine’s third response to the ACMA, dated 20 May 2013, included the following:
Nine was made aware of the issue through viewer feedback and subsequent checks of Nine's Media Proxy logger [which monitors and records Nine’s broadcasts].
... Nine did check for an off air recording through our Media Proxy which indicated QTQ market captions cleared as 'OK', where GTV and TCN recordings were intermittent...
Nine’s fourth response to the ACMA, dated 21 June 2013, confirmed that the broadcast of the program on GTV was affected by the same captioning issue as for the broadcast on TCN.
Finding
The licensees breached subsection 130ZR(1) of Part 9D of the BSA.
Reasons
Under subsection 130ZR(1) of the BSA, the licensees were required to provide a captioning service for the program, as it was broadcast on the licensees’ core/primary commercial television service, during the designated viewing hours of 6pm and 10.30pm. That is, as the program was broadcast on TCN and GTV from 7.30pm to 8.30pm, during the designated viewing hours, a captioning service should have been provided for the program.
The ACMA reviewed the copy of the broadcast on TCN provided by the licensee. The ACMA also considered Nine’s admission that captions were intermittently provided on TCN and GTV throughout the second episode broadcast at 8pm. In considering whether a particular broadcaster has satisfied the captioning obligations, the ACMA has regard to all the relevant quality indicators set out at Attachment A, and most importantly, the cumulative effect of their application rather than assessing a broadcast against each individual criterion. In particular, the ACMA assessed the relevant Quality Indicator in the ‘Timing and Editing’ category, which is 1) closed captions coincide with the relevant soundtrack, so that the relationship between sound and visuals is preserved for the viewer. On viewing the second episode, the ACMA found the captions to be sporadic, unfinished and missing at different times. Overall, the relationship between sound and visuals was not preserved by the captions in this program.
Nine has conceded that it provided intermittent captioning of the second episode of the program (from 8pm to 8.30pm), when an unknown technical error in a component at the end of the transmission path caused interruptions to the captions transmitted. Nine submitted that it was made aware of the error through viewer feedback, which was then confirmed when it checked the logger wherein it was established that two (TCN and GTV) services were affected.
Issue 2: Does section 130ZUB of the BSA apply?
Relevant provision
Division2—Captioning obligations of commercial television broadcasting licensees and national broadcasters
130ZUB Certain breaches to be disregarded
(1) If:
a) apart from this subsection, a commercial television broadcasting licensee has breached a provision of this Division; and
b) the breach is attributable to significant difficulties of a technical or engineering nature for the licensee; and
c) those difficulties could not reasonably have been foreseen by the licensee;
then the breach is to be disregarded in determining whether the licensee has complied with the provision.
Licensees’ submissions
Nine’s response to the ACMA dated 7 February 2013 included the following concerning the relevance of section 130ZUB of the BSA:
[...]
... [I]t is important to note that the intermittent caption fault occurred in the transmission path and was not evident during the pre-transmission checks or monitoring and therefore is an ‘unforeseen technical difficulty’ and a ‘disregarded breach’ under the Act [BSA].
...As this error was of a technical nature and could not be reasonably foreseen given that our pre transmission checks for the program and our master copy of the program contain captions, it follows that this breach be disregarded as per the guidelines in the Act [BSA] in this instance.
To provide more background on the technical nature of this issue, once this issue was brought to our captioning service provider’s attention all upcoming scheduled episodes of the program were checked again. Each component in the transmission path is being analysed including the Wohler caption inserter that has been identified by some other broadcasters as a potential problem. Our caption service provider has updated the software in one of the Wohler caption inserters and will monitor this unit prior to upgrading all of the transmission path inserters to ensure compliance with the Act [BSA].
It is important to note, the transmission paths are on-air 24 hours a day. This particular intermittent fault was from recorded material that was captioned 4 years ago with multiple successful caption transmissions prior to the date of 9January 2013. This Program’s Second Episode was recorded and cleared as ‘OK’ with captions on our logger however due to the failure in the transmission path, which cannot be captured before broadcast, the captions were intermittent.
Clarification was sought and in its second response to the ACMA on 16 April 2013, the licensees advised the following:
[...]
[From the licensees’ analysis of the transmission path] the intermittent fault occurred on programs that had been captioned to tape in 2009. Analysis of the caption data showed constant captions on field 1 with “intermittent“ captions on field 2.
The transmission chains are constantly monitored for broadcast continuity including captions.
It has been identified that the combination of “intermittent” captions on one field with constant captions on the second field caused the compression / encoding equipment in some regions to intermittently fail to broadcast captions.
This was the first time this issue was identified since commencement of transmission from Nine’s National Playout Centre.
A new generation of Wohler cards with the latest version of software was deployed across all inserters in September 2012.
A monitoring station was established that enables “intermittent” captions to be identified prior to broadcast. If “intermittent” captions are identified, a new caption file is sourced from [captioning service provider] embedded prior to broadcast replacing the original captions.
Clarification was sought again and in its third response dated 20 May 2013, Nine stated:
[...]
There was not a significant event [that resulted in captioned programs having intermittent captioning faults] other than an apparent compatibility issue between the tape based caption process in 2009 & Nine's file based broadcast system in 2013.
... these episodes were broadcast successfully with captions on many occasions prior to transition to the NPC [National Playout Centre]. The fault was not diagnosed in 2009, as it caused no on-air failure in our previous on-air systems at Willoughby. The fault only manifested itself when this old material was passed through our new systems at NPC.
When it was ascertained that the fault was intermittent and could not be pinpointed to a date range or a specific set of programmes, it was decided that all old material would be recaptioned where possible, when they are brought into the new system at NPC. Therefore, in the event a program is put in system where captions came off tape, Nine now orders a new file from [captioning service provider] to ensure the old material does not experience faults when passed through the new systems at NPC.
This is the first time staff at the NPC became aware of an intermittent caption problem occurring during the transmission of a program that had previously broadcast successfully with captions...
The monitoring station was established on 23 Jan 2013 to detect a caption to tape technique that was identified as a trigger for intermittent captioning in some receiver systems.
...[Attachment B] is a detailed chart which demonstrates that the continuity of captions is verified at 6 different transmission streams within NPC and also through off-air via set top boxes.
Prior to Broadcast
1 a: During the ingest process when captions are sourced from tape
1 b: During the merge process when captions are sourced from a file
2: During play down checks when program files are moved to the playout server
During Broadcast
3: Out of the playout server and market router
4: Out of the presentation switcher
5: Out of the Wohler caption inserter
6: Out of the high definition to standard definition converter
Further, the integrity monitoring at these 6 transmission streams displayed no issue with the captions. We note at the encoding stage, which occurs after it has cleared the transmission stage, the issue of intermittent captions appeared to occur and this can also be dependent on devices used at home to receive the Program's broadcast. The nature of this fault resulted in some receive systems decoding captions as 'OK' and other systems displaying intermittent captions.
This detailed transmission scheme checked all points during transmission 24hours a day. Nine did check for an off air recording through our Media Proxy which indicated QTQ market captions cleared as 'OK', where GTV and TCN recordings were intermittent, which is hard to anticipate as the six streams of pre-transmission checks cleared and thus is an 'unforseen technical difficulty' as stated in our previous submissions. It is not possible to determine whether the dedicated off-air set top boxes at NPC displayed captions for all broadcast regions, as no fault was identified by our Master Control operators during the broadcast. Nine conducts regular audits of transmitted broadcasts to check post-transmission captions.
Nine’s letter of 21 June 2013 provides further information:
...GTV was affected by the same captioning issues as mentioned in our previous submission...
The steps used to remedy the problem for GTV are the same steps used for TCN. The software in one of the Wohler captions inserters was upgraded and a monitoring station was established as discussed in our second submission dated 16 April 2013. Further, as a precautionary measure when a program is put in system where captions came off tape, Nine now orders a new file from [captioning service provider] to ensure the old material does not experience faults when passed through the new systems at Nine’s National Playout Centre (NPC)...