Investigation Report No. BI-000307Broadcaster Channel Seven Melbourne Pty Ltd

Station Channel 7

Type of Service Commercial broadcasting - television

Name of Program Australian Open Tennis 2017 – Match between Nick Kyrgios and Andreas Seppi

Date of Broadcast 18 January 2017

Time of Broadcast Approximately 6:00pm to 9:30pm

Relevant Legislation/Code

Broadcasting Services Act 1992 (the BSA):

o subsection 130ZZA(4), Part 9D [compliance with captioning standard by a commercial broadcaster]

o subsection 130ZR(1), Part 9D [captioning programs between 6 am and midnight on free-to-air primary channels]

Broadcasting Services (Television Captioning) Standard 2013 (the Standard)

Date finalised 31 May 2017

Decision No breach of subsection 130ZZA(4), Part 9D of the BSA;

No breach of subsection 130ZR(1), Part 9D of the BSA; and

No breach of the Standard.

Background

In March 2017, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about the Australian Open Tennis 2017 broadcast on Channel Seven by Channel Seven Melbourne Pty Ltd (the Broadcaster) on 18 January 2017.

The complaint specifically related to the broadcast of the match between Nick Kyrgios and Andreas Seppi (the Program), which was broadcast from approximately 6.00pm to 10:30pm.

The complainant alleged that that the captioning quality provided during the match was not in accordance with the Standard. The complainant stated that:

Channel 7 is placing captions at the top of the screen and leaving them there during play thus obliterating much of the top-court play.

The ACMA has exercised its discretion under section 170 of the BSA to investigate whether the Broadcaster:

complied with the Standard and subsection 130ZZA(4) of the BSA; and

provided a captioning service under subsection 130ZR(1) of the BSA.

Excerpts of relevant sections of the BSA and the Standard are contained at Attachment A.

The program

The Australian Open Tennis is an annual tennis tournament that is broadcast from Melbourne. It is mainly broadcast live. The broadcasts typically focus on one higher-profile match from a series of concurrent matches, with live-crosses to, or re-caps of, other matches.

The broadcasts are commentated live by a number of different individuals, with approximately two to six different speakers throughout any given match. Broadcasts of match play are supplemented by pre-production graphics, such as a score display and analytics of the match (e.g. serve speed; ball trajectory).

The match in question was approximately 3.5 hours long. The match was comprised of five (5) sets and fifty-six (56) games in total. This match is hereafter referred to as ‘the Program’.

Assessment and submissions

The ACMA has investigated the Broadcaster’s compliance with the captioning obligations imposed under Part 9D of the BSA and the requirements relating to quality set out in the Standard. The outcome of this assessment will determine whether the Broadcaster has breached the Standard and thereby breached a condition of its licence.

The Standard establishes minimum requirements relating to the quality of captioning services. The Standard specifically requires captions to be readable,1 accurate2 and comprehensible,3 so that they are meaningful to deaf and hearing impaired viewers.

1 Paragraph 7(a) of the Standard2 Paragraph 8(a) of the Standard 3 Paragraph 9(a) of the Standard

A ‘captioning service’ is defined in the Standard as a service in which the captions enable the viewer to follow the speakers, dialogue, action, sound effects and music of a program. ‘Captions’ are defined in the Standard as the visual translation of the soundtrack of a program in English, in word form.

When determining the quality of a captioning service for a program, the cumulative effect of the readability, accuracy and comprehensibility of the captions must be considered.4 A copy of the factors which relate to the readability, accuracy and comprehensibility of a captioning service is contained at Attachment A.

This investigation has taken into account the complaint (Attachment B), submissions from the licensee (Attachment C), a copy of the broadcast provided to the ACMA by the Broadcaster, and a visit to the facilities of the Broadcaster’s captioning provider.

As part of its assessment, the ACMA reviewed the Program both with and without sound to assess the quality of the captioning service.

Assessing the Match as ‘the program as a whole’The Standard stipulates that the quality of a captioning service for a program must be considered in the context of the program as a whole.5 The circumstances of the broadcast and the nature of the program being broadcast are also relevant considerations.

The definition of ‘program’ in the Standard is that ‘program’ includes both a television program and a distinct program segment within a television program.6 This is consistent with the definition of ‘program’ at sections 6 and 130ZK of the BSA. Section 6 of the BSA states that ‘program’ is ‘matter the primary purpose of which is to entertain, to educate or to inform an audience’. Section 130ZK of the BSA states that ‘program’ excludes advertising or sponsorship matter, or a community service announcement or an emergency warning.

The definition of ‘program’ in the Standard, together with paragraph 6(b) of the Standard, require that in the case of a program with distinct program segments, the quality of the captioning service must be considered in the context of that distinct program segment. The ACMA maintains that this approach best fits the purpose of Part 9D of the BSA, being ‘to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community’.7

Assessment of live captioningIn a letter to the ACMA dated 6 February 2017, the Broadcaster submitted the following:

Positioning the captions at the top of screen did occasionally result in match action being obscured. […] In our view, no alternative placement was possible without blocking other important on screen information.

In a subsequent letter to the ACMA dated 11 April 2017, the Broadcaster provided submissions in response to specific questions posed by the ACMA:

[…]

Can the captions be positioned either higher or lower on the screen to avoid obscuring play?

4 Paragraph 6(c) of the Standard5 Paragraph 6(a) of the Standard6 Section 4 of the Standard 7 Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television) Bill 2012 (which

introduced Part 9D of the BSA), p.1

There are a limited number of positions available which we will demonstrate on your visit to Ai Media. Differences in individual receivers mean that captions can also display differently depending on a viewer's individual receiver - so may appear higher or lower on some television sets than others.

Can the captions be aligned to the right or left to avoid obscuring play?

No. During live captioning, left justification is the only option available to the captioner[.]

Can on-screen graphics be re-positioned to mitigate the difficulties of live captioning sports events?

The Broadcasting Services (Television Captioning) Standard 2013 requires that captions are positioned so as to avoid obscuring other on-screen text, any part of a speaker's face including the mouth and any other important visuals where possible.

When live captioning, captions are placed either at the top or the bottom of the screen, taking into account the location of other on-screen text, such as scores. For a sport such as tennis, where play moves continuously between the top and bottom of the screen, clearly important visual information will sometimes be blocked by the captions wherever they are placed.

[…]

Prior to the broadcast of the Australian Open tennis Seven gave consideration to the most effective positioning of the captions in the context of multi-camera coverage of a tennis tournament with scores shown on screen. We used our best judgement to determine the position for the captions that we believed would avoid obscuring important visuals where possible and we are of the view that we have taken all steps necessary to satisfy the Standard, and provide a captioning service of the highest quality.

[…]

Officers of the ACMA visited the captioning provider’s facilities on Wednesday 26 April 2017 and were provided with a demonstration of live captioning, an explanation of the processes involved, demonstrations of captions displayed on a variety of television screens, and an explanation of the limited space in which captions can be displayed. The positioning of captions is affected by the following factors:

- The positioning of captions broadcast on digital free-to-air television varies between different models of digital television sets, also known as ‘receivers’. Unlike analogue television sets, which had a common standard for the positioning of captions, the positioning of captions broadcast to digital television sets on free-to-air television is affected by software, middleware, television set type, and set-top boxes - if used.

- When each of these factors are borne in mind, the frame within which captions can be displayed – to ensure that they are visible on all models of digital television sets – becomes more restricted.

- The captions must be placed within what is described as a ‘postage stamp’ area. This is a smaller area within the presentation screen that is considered to be the best way to ensure that captions will display on all television screens. This means that the extreme top, bottom, and sides of the television screen will not usually have captions displayed.

The Explanatory Statement to the Standard states the following:

The ACMA recognises that broadcasters and narrowcasters may use different methods of captioning, such as live captioning and pre-prepared captioning. The ACMA takes the view that it is important to consider whether the captioning service provided with a program is what would be expected in the context of the program as a whole.

Factors to consider include the circumstances of the broadcast and the nature of the program being broadcast. For example, it is reasonable to expect that during the live broadcast of a fast-paced sporting match there would be a time lag between the captions and the soundtrack and the caption lines may not end at natural linguistic breaks.8

In determining the quality of captioning, the ACMA takes into account, among other factors, the circumstances of the broadcast - including the nature of live captioning and technical limitations. The ACMA had regard to these circumstances in the present investigation, but also notes that - regardless of the method of captioning - the captioning provided for a program must be meaningful to viewers.

Issue 1: Did the Broadcaster provide a captioning service for the program that complied with the Standard and accordingly complied with subsection 130ZZA(4) of the BSA?

FindingThe program did comply with the Standard

The Broadcaster has complied with the Standard and, as such, has complied with subsection 130ZZA(4) of the BSA with respect to the Program.

ReasonsThe ACMA‘s finding is based on two grounds:

1. that the Broadcaster and its captioning provider faced technical issues that restricted the positioning of the captions; and

2. that the Program was nonetheless able to be readily followed and comprehended.

1. The Broadcaster and its captioning provider faced technical issues that restricted the positioning of the captions.

The ACMA acknowledges that the positioning of the captions and their obscuration of match-play during the Program is unfortunate but also often unavoidable. The ACMA is of the view that options available for the alternative placement or management of the captions to the Broadcaster and its captioning provider were limited.

For example, Game 15 in Set 5 – the final set of the Match9 - was an exciting moment: both players had won two sets each, were tied at seven games each, and the score reached 30-30. Nick Kyrgios was serving and appeared at the top of the screen. Although the commentators spoke only during breaks in play, the inevitable delay associated with live captioning meant that captions obscured the majority of subsequent play at the top of the screen. This occurred even when the captions were displayed for the minimum possible period of time (approximately four seconds).

In, summary the intermittent obscuration of match play by captions presents an unusual and difficult example - in which the absence of captions would have improved the visibility of the play, but would have unacceptably compromised accessibility to the commentary.

8 See Section 6 Determining the quality of captioning services – Broadcasting Services Television Captioning Standard Explanatory Statement9 Game 15, Set 5 was played between approximately 9:14pm and 9:16pm of the broadcast.

On this basis, the ACMA accepts that the Broadcaster and its captioning provider took all possible steps to ensure that the captions were of an acceptable quality, obscuring the least amount of match play, whilst providing accessibility to the spoken commentary. The ACMA is of the view that the obscuration of match play during the Program was the unavoidable consequence of technical limits on the positioning of captions, coupled with the effect of delays that occur when captioning a live event and the nature of tennis match visuals, such that play rapidly moves to different parts of the screen.

2. The Program was nonetheless able to be followed and comprehended.

The ACMA is of the view that, even where match play was obscured by captions, the Program could still be followed. Taking into account the requirements of readability and comprehensibility in the Standard, the ACMA has formed the view that the captions obscuring game play, while impacting on the viewing experience for people reliant on captions, did not compromise the overall comprehensibility of the Program – the outcome of each game, set, and the overall match remained clear.

On this basis, the ACMA considers that the Broadcaster has complied with the requirements of the Standard with respect to the Program and has consequently not breached subsection 130ZZA(4) of the BSA.

Issue 2: Did the Broadcaster comply with the requirements of subsection 130ZR(1) of the BSA, by providing a captioning service for the program, in accordance with the basic rule?

Finding

The program did comply with the legislative requirements

The ACMA has formed the view that the Broadcaster did comply with the requirements of subsection 130ZR(1) of the BSA: that the Broadcaster did provide a captioning service for the Program on 18 January 2017 in accordance with the basic rule.

Reasons Under subsection 130ZR(1) of the BSA, the Broadcaster is required to provide a captioning service for the program as it was broadcast on the Broadcaster’s primary television service during the designated viewing hours.

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

The ACMA’s interpretation also fits the purpose of the BSA. Firstly, the Explanatory Memorandum to the Broadcasting Services Amendment (Improved Access to Television) Bill 2012, which introduced new and expanded captioning provisions to the BSA, states that the purpose of developing captioning standards is to ‘obligate Broadcasters to provide a consistent quality of captioning services […] and

[…] ensure captioning services are meaningful to the viewer’. Secondly, as mentioned above, the more general purpose of Part 9D, is 'to facilitate improved access to free-to-air and subscription television by Australia’s hearing impaired community'. That is, captioning services must be of a consistent quality, so they are meaningful to hearing impaired viewers, to enable them to have improved access to television.

Section 5 of the Standard requires Broadcasters to comply with the requirements relating to quality in the Standard when providing a captioning service in accordance with their captioning obligations.

Attachment A

Relevant provisions of the BSA

Part 9D of the BSA — Captioning

Captioning obligations--basic rule

Subsection 130ZR(1)

Each commercial television broadcasting broadcaster, 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.

Division 4 – Captioning standards

Subsection 130ZZA(4):

A commercial television broadcasting licensee must comply with a standard determined under subsection (1).

[Subsection (1): The ACMA may, by legislative instrument, determine standards that relate to: (a)  the quality of captioning services provided by commercial television broadcasting licensees for television programs]

Broadcasting Services (Television Captioning) Standard 2013

Section 6 Determining the quality of captioning services

(a) Subject to paragraph (b), when determining the quality of a captioning service for a program, the captioning service must be considered in the context of the program as a whole.

(b) When determining the quality of a captioning service for a program that is a distinct program segment within a television program, the captioning service must be considered in the context of that distinct program segment on its own.

(c) When determining the quality of a captioning service, the cumulative effect of the following factors must be considered:

(i) the readability of the captions;

(ii) the accuracy of the captions; and

(iii) the comprehensibility of the captions.

Note: Whilst noting that it is not authorised to determine that a lower quality of captioning service is acceptable for a kind of program or program material (see subsection 130ZZA(2B) of the Act), in determining this Standard, the ACMA has considered the differences (including time constraints for live content) between providing captioning services for live and pre-recorded television programs; and wholly live or wholly pre-recorded television programs and television programs that include both live and pre-recorded program material (see subsection 130ZZA(2A) of the Act).

Section 7 Readability of captions

(a) When providing a captioning service for a program, broadcasters and narrowcasters must use captions that are readable.

(b) When determining whether captions are readable, the following factors must be considered in the context of the program as a whole:

(i) whether colour and font is used in the captions in a way that makes them legible;

(ii) whether the caption lines end at natural linguistic breaks and reflect the natural flow and punctuation of a sentence, so each caption forms an understandable segment;

(iii) whether standard punctuation of printed English has been used in the captions to convey the way speech is delivered;

(iv) whether the captions are positioned so as to avoid obscuring other on-screen text, any part of a speaker’s face including the mouth and any other important visuals where possible; and

(v) whether the captions are no more than three lines in length.

Section 8 Accuracy of captions

(a) When providing a captioning service for a program, broadcasters and narrowcasters must use captions that accurately recreate the soundtrack of a program.

(b) When determining whether captions accurately recreate the soundtrack of a program, the following factors must be considered in the context of the program as a whole:

(i) whether spoken content has been captioned;

(ii) whether the captions of spoken content are verbatim;

(iii) where it is not possible for the captions of spoken content to be verbatim, whether the captions reflect the actual meaning of the spoken content;

(iv) where the intended target audience of a program is children and the captions are not verbatim, whether the captions reflect the actual meaning of the spoken content;

(v) whether the manner and tone of voice of speakers has been conveyed, where practical and material; and

(vi) whether sound effects and/or music, material to understanding the program and not observable from the visual action, have been accurately described.

Section 9 Comprehensibility of captions

(a) When providing a captioning service for a program, broadcasters and narrowcasters must use captions that are comprehensible.

(b) When determining whether captions are comprehensible, the following factors must be considered in the context of the program as a whole:

(i) whether the captions clearly identify and distinguish individual speakers, including off-screen and off-camera voices;

(ii) whether the captions are displayed for a sufficient length of time to allow the viewer to simultaneously read them and follow the action of the program;

(iii) the extent to which the appearance of the caption coincides with the onset of speech of the corresponding speaker, sound effect or music;

(iv) the extent to which the disappearance of the caption coincides with the end of the speech of the corresponding speaker, sound effect or music;

(v) whether the words used in the captions have been spelt correctly;

(vi) where a word is not spelt correctly, whether the spelling provided nevertheless conveys the meaning of the actual word;

(vii) whether explanatory captions are provided for long speechless pauses in the program;

(viii) the extent to which a caption over-runs a shot or scene change; and

(ix) the extent to which the appearance or disappearance of the caption, as the case may be, coincides with the relevant shot or scene change.

ATTACHMENT B

Complainant’s submissionThe complaint received by the ACMA on 18 January 2017 was concerned with the quality of the captioning in the program, stating that:

Channel 7 is placing captions at the top of the screen and leaving them there during play thus obliterating much of the top-court play.

ATTACHMENT CBroadcaster’s submissionsThe broadcaster’s submission to the ACMA dated 6 February 2017 stated, in part, the following:

[…]

Given that the score was shown on the bottom left of screen, and many points are won and lost on the base line, the decision was made to place the captions at the top of the screen.

Positioning the captions at the top of screen did occasionally result in match action being obscured. However the issue of captions obscuring action is mitigated to some extent by commentators rarely speaking during live play of any point. Also, the captions remain on the screen for the least amount of time possible, while satisfying the comprehensibility provisions as provided by the Standard.

In our view, no alternative placement was possible without blocking other important on screen information.

[…]

The broadcaster’s submission to the ACMA dated 12 April 2017 stated, in part, the following:

[…]

Can on-screen graphics be re-positioned to mitigate the difficulties of live captioning sports events?

[…]

Prior to the broadcast of the Australian Open tennis Seven gave consideration to the most effective positioning of the captions in the context of multi-camera coverage of a tennis tournament with scores shown on screen. We used our best judgement to determine the position for the captions that we believed would avoid obscuring important visuals where possible and we are of the view that we have taken all steps necessary to satisfy the Standard, and provide a captioning service of the highest quality.

[…]