Why are certain breaches of captioning obligations by television broadcasters disregarded? There is an explanation.
In 2012, the government introduced this exception to safeguard against the possibility that a television broadcaster's captioning service may be affected by specific circumstances and factors that are outside of the broadcaster's control. This was part of the then amendments to the Broadcasting Services Act 1992, which increased captioning obligations on television services.
The amendments require free-to-air (commercial and national) and subscription television services to meet increasing annual captioning targets and comply with captioning quality requirements. Free-to-air television broadcasters' captioning target already reached 100 per cent by 1 July 2014 (primary channels 6 am to midnight). The annual captioning targets for subscription television services continue to increase each year until they reach 100 per cent. There is more information (and videos) about captioning obligations for television services on the ACMA captioning website.
The amendments also set out particular circumstances in which a breach of the captioning obligations or captioning quality standard by a television broadcaster would be disregarded. They are if:
- the breach is due to significant technical or engineering difficulties
- the difficulties could not reasonably have been foreseen by the broadcaster.
The relevant provisions, in Part 9D of the Act, are sections:
- 130ZUB—for breaches of free-to-air television's captioning obligations in Division 2 (captioning targets, the basic rule and the special rules for multi-channels)
- 130ZZAB—for breaches of subscription television's captioning obligations in Division 3 (captioning targets and the captioning rules for repeat television programs and simulcast television programs)
- 130ZZA(7A)—for breaches of the captioning quality standard determined by the ACMA (this provision, for both free-to-air and subscription television, was added to the Act in March 2015 to provide greater consistency in the treatment of captioning breaches resulting from unforeseen technical or engineering difficulties).
How does the ACMA determine whether a captioning breach should be disregarded?
When investigating complaints about captioning, the ACMA also considers claims by broadcasters that a captioning breach should be disregarded because the breach was caused by both unforeseen and significant technical or engineering difficulties. The ACMA considers these claims case-by-case. Broadly, the assessment involves three tests:
Test 1. Whether the breach was caused by technical or engineering difficulties
The broadcaster would need to specify which equipment caused the captioning issues and provide details.
Test 2. Whether the difficulties were significant
The difficulties would be considered to be significant if a broadcaster’s failure to provide a captioning service or meet captioning quality requirements arose from those difficulties.
Test 3. Whether the difficulties could reasonably have been foreseen by the broadcaster
The ACMA considers a range of issues. For example:
- Has the same error occurred before for the broadcaster?
- What quality control systems are in place to identify captioning errors?
- Is the broadcaster aware of the same error occurring for other broadcasters using the same equipment?
- Was there any action that could have been taken to prevent the error?
- How often does the equipment get serviced or upgraded?
Please refer to the assessment process for further information.
What does it mean if the ACMA decides that a captioning breach should be disregarded?
If the ACMA decides that a captioning breach by a broadcaster was caused by significant technical or engineering difficulties that could not reasonably have been foreseen by the broadcaster, then the beach will be disregarded.
Each ACMA decision to disregard a captioning breach applies to a specific breach. The broadcaster concerned is still subject to the same captioning obligations as specified in the Act.
The events leading to the breach and the remedial action taken by the broadcaster will inform future ACMA decisions on whether specific technical difficulties could have been foreseen by the broadcaster. If the same technical difficulties for the broadcaster happen again, the ACMA is less likely to regard those difficulties as unforeseeable for the broadcaster.
‘Disregarded’ captioning breaches
From 1 July 2012 to 30 June 2015, the ACMA completed 31 investigations of complaints about captioning on television services. Of these 31 investigations, 17 investigations found captioning breaches for the broadcasters concerned. However, three of the 17 breach findings were disregarded due to significant technical or engineering difficulties unforeseen for the broadcasters concerned:
- Investigation 2950—the Big Bang Theory (broadcast on 9/1/2013 by Channel 9 Sydney TCN and Melbourne GTV)
- Investigation 2964—Seven News, Today Tonight and Home and Away (broadcast on 22/1/2013 by Channel 7 Brisbane BTQ)
- Investigation 2968—Home and Away (broadcast on 11/2/2013 by Channel 7 Brisbane BTQ).
You can find television broadcasting investigation reports on the ACMA website.