Investigation Report No. 2756File no. ACMA2012/174

Licensee Prime Television (Northern) Pty Ltd

Station NEN

Type of service Commercial television

Name of program Seven News

Date of broadcast 11 January 2012

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

Date Finalised 16 April 2012

Decision Breach of clause 7(1)(o) of Schedule 2 to the Broadcasting Services Act 1992 (captioning)

Investigation conclusion

Prime Television (Northern) Pty Ltd, in relation to the broadcast of Seven News on 11 January 2012 on NEN, breached clause 7(1)(o) of Schedule 2 to the Broadcasting Services Act 1992 (BSA).

ACMA Investigation Report – Seven News broadcast on 11 January 2012

The complaintOn 11 January 2012, the Australian Communications and Media Authority (ACMA) received a complaint alleging that NEN failed to provide captioning for the Seven News program broadcast on the same day at 6.30pm.

As this complaint relates to a licence condition, the complaint was able to be made directly to the ACMA without written reference to NEN. The ACMA has investigated the licensee’s compliance with clause 7(1)(o) of Schedule 2 to the BSA in accordance with sections 147 and 149 of the Act. 1

The programSeven News is a nightly 6.30pm broadcast which originates from the Melbourne broadcast centre of the Seven Network.

AssessmentThe assessment is based on written submissions from the complainant and the licensee, and a copy of the broadcast which was provided by the licensee to the ACMA, and was reviewed by the ACMA.

Issue: Did the licensee provide a captioning service for the broadcast of Seven News on 11 January 2012?

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

Complainant’s submissionsThe complainant wrote the following to the ACMA on 11 January 2012:

... for failing to caption the Seven National News broadcast earlier tonight at 6:30pm on Digital TV Channel 6 (Prime Northern NSW).

I watched the entire broadcast and there was no captions on the news at all, but when the commercials came on, some of these were shown with captions. I also quickly checked SBS News at 6:30pm and they were being shown with captions, so there doesn't appear to have been any issues with my equipment (digital STB, etc).

Licensee submissionsThe licensee’s response to the ACMA, dated 8 February 2012, included the following:

[...]

We can confirm that NEN/Prime staff (duty presentation supervisor and the duty engineer were contacted by the Seven Network’s broadcast centre in Melbourne (BCM) at 17:59:40 to advise that the BCM had problems with the closed captions for the Seven news.

As a result of this, NEN/Prime staff aired the following apology notice during the Seven news broadcast:

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 – Seven News broadcast on 11 January 2012

“DUE TO TECHNICAL DIFFICULTIES, CLOSED CAPTIONS ARE NOT AVAILABALE FOR THIS PROGRAM.”This apology was aired three times throughout the 30 minute broadcast: 18:33:56 to 18:34:16 (20 seconds), 18:46:48 to 18:47:06 (18 seconds) and 18:53:18 to 18:53:37 (19 seconds).

[...]

The licensee’s response to the ACMA’s preliminary investigation report, received on 21 March 2012 included the following:

We have discussed this matter with the Seven Network and they have confirmed that the captioning problem was technical – and stemmed from the feed from the Broadcast Centre Melbourne, and related to a particular piece of software. All captioning for the Seven news that evening failed and unfortunately Prime was unable to get live captions (that were available in Seven’s metro markets) because Seven’s bypass system was not – at the time – set up to do that for regional markets. I am advised by Seven that this is being rectified as a matter of urgency.

FindingThe ACMA is of the view that NEN in relation to the broadcast of Seven News on 11 January 2012, breached clause 7(1)(o) of Schedule 2 to the BSA.

ReasonsSeven News is a news program transmitted during prime viewing hours (between 6pm and 10:30pm). Under clause 38(1) of Schedule 4 to the BSA, each commercial television broadcasting licensee must provide a captioning service for television programs transmitted during prime viewing hours. The broadcast in question did not contain any captions except for captioned notifications which were aired three times throughout the program.

The notifications however did not include apologies and the ACMA observed that at times, the words in the notifications were unclear or obscured by news super text already present in the news items (see Attachment B).

The licensee in its letter of 21 March 2012 confirmed that ‘[a]ll captioning for the Seven news that evening [11 January 2012] failed and unfortunately Prime was unable to get live captions’.

In these circumstances, the licensee cannot be regarded as having provided a captioning service as required under clause 38(1) of Schedule 4 of the BSA.

Clause 7(1)(o) of Schedule 2 to the BSA requires commercial television broadcasting licensees to comply with clause 38(1) of Schedule 4 to the BSA.

Accordingly, the delegate finds that the licensee breached clause 7(1)(o) of Schedule 2 to the BSA by failing to provide a captioning service under clause 38(1) of Schedule 4 of the Act.

ACMA Investigation Report – Seven News broadcast on 11 January 2012

ATTACHMENT A

Schedule 2

Part 3—Commercial television broadcasting licences

Division 1—General

7 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.

...

Schedule 4

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. Note: For compliance by licensees, see clause 7 of Schedule 2.

             (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

ACMA Investigation Report – Seven News broadcast on 11 January 2012

                     (c)  the licensee provides in the licence area another service that is:                           (i)  a 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 SDTV multi-channelled commercial television broadcasting service mentioned in subparagraph (c)(i); or

                     (e)  the HDTV multi-channelled commercial television broadcasting service mentioned in subparagraph (c)(ii);

unless the program has been previously transmitted on the core/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.

[...]

           (9)  If:                    (a)  a commercial television broadcasting licence is in force; and

ACMA Investigation Report – Seven News broadcast on 11 January 2012

                   (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.

ACMA Investigation Report – Seven News broadcast on 11 January 2012

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.

ACMA Investigation Report – Seven News broadcast on 11 January 2012

ATTACHMENT B

First Notification

03:55 to 04:15 (20 seconds) unclear at times

Second Notification

16:46 to 17:06 (20 seconds) obscured for 17 seconds by super text in the news item

Third Notification

23:17 to 23:37 (20 seconds) obscured for 2 seconds by super text in the news item

ACMA Investigation Report – Seven News broadcast on 11 January 2012