Television

This section covers Australian legislation on television accessibility. An international comparison with television accessibility legislation in the United Kingdom, Canada, United States and New Zealand is provided below.

Australia

Background

In Australia, there are currently 42 commercial broadcast (also known as‘free-to-air’) television licensees, including the Nine Network, the Seven Network, Network Ten, Southern Cross Broadcasting, Prime Television, WIN, NBN and Imparja Television, as well as the national public broadcasters ABC and SBS. There are also four subscription television broadcasting television licensees, including Austar, Foxtel, Optus and Telstra.

The Broadcasting Services Act 1992 (Cth) (BSA) and the current Commercial Television Industry Code of Practice are the main instruments that deal specifically with accessibility in commercial licensees. Neither the Act nor the Subscription Broadcast Television Codes of Practice does not require subscription licensees to make their content accessible.

The Disability Discrimination Act 1992 (Cth) is also relevant as it gives the Australian Human Rights Commission powers to grant exemptions for discrimination complaints to broadcasters, amongst other entities, that commit to improving accessibility.

Australian instruments require far less accessibility than comparable instruments in the UK, the US and Canada. There are number of important legislative reasons:

• Australian instruments require more of commercial television than subscription television. Equivalent legislation in the UK,the US and Canada imposes the same requirements on subscription and free-to-air television. Given the weaker instruments for accessibility on subscription television, it is unsurprising that captioning levels for subscription television in Australia are less than half of free-to-air television;
• Australian instruments do not set any minimum standards for the quality of captioning; by comparison the UK and Canada have set specific standards on captioning quality.
• Australian instruments require closed captioning, but not audio description or any other form of accessibility; by comparison, the UK and Canadian instruments require both closed captioning and accessibility; and
  
• The Australian Communications and Media Authority (ACMA) has not exercised its powers under Section 125 of the Broadcasting Services Act 1992 (Cth) to codes of practice for  audio description and captioning standards in lieu of existing codes. By comparison, the ACMA's equivalents in the UK and Canada, Ofcom and the CRTC, have already created relevant codes and standards addressing both matters.
  

Currently, there is no legislation or regulation of accessibility on Video On Demand (VOD) services in comparable legislatures to Australia. In the UK, under an EU directive, proposed legislation to regulate television-like VOD services has been confirmed by a statement from Ofcom.

The three central instruments used to regulate accessibility on Australian commercial television are discussed below.

Disability Discrimination Act 1992 (Cth)

Section 24 of the Disability Discrimination Act 1992 (Cth) (DDA) prohibits disability discrimination in the provision of goods and services. This has been held to include the broadcast of free-to-air television. The DDA also grants the Australian Human Rights Commission the power to grant temporary exemptions to allow time, where necessary, to make changes to comply with the DDA. This means that if a temporary exemption is granted the activities covered by the temporary exemption can not be the subject of a complaint under the DDA. The DDA

The Commission has granted two temporary exemptions, for commercial and subscription broadcast licensees to increase captioning. Currently, there are no exemptions relating to introduce audio description.

In 2008, the Commission granted commercial broadcast licensees a three year exemption on the condition that they increase levels of captioning on their primary channels to:

• 75% of programs between 6am and midnight for the year ending 31 December 2009

• 80% of programs between 6am and midnight for the year ending 31 December 2010

• 85% of programs between 6am and midnight for the year ending 31 December 2011

Prior to the exemption expiring on 31 December 2011, these commercial broadcast licensees. must also consult with Deaf Australia and Deafness Forum on issues involving caption quality, total caption levels achieved, caption levels achieved on secondary channels, and further increases after the expiry of the exemption. The exemption agreement applies in tandem with the captioning level requirements under the Broadcasting Services Act 1992 (Cth).

In 2004, the Commission also granted a five year exemption to subscription television licensees, albeit at much lower captioning levels than the exemption granted to commercial broadcast licensees, to:

• Enable captioning for at least 5% of total programming hours of applicable channel on a minimum of 20 channels within six months;
• Enable captioning a further 20 channels within 24 months; and
• Increase captioning by 5% of total programming hours of applicable channel, per annum, for each enabled channel.

This exemption expired in June 2009. The Commission is currently considering an application for a new five year exemption for subscription broadcast licensees which proposes to:

• Enablean additional 10 channels, one Australian news broadcasting channel and one Australian sports broadcasting channel over the course of five years;and
• Increase captioning by 5% of total programming hours of applicable channel, per annum,for each enabled channel.

Broadcasting Services Act 1992 (Cth)

The Broadcasting Services Act 1992 (Cth) (BSA) sets captioning levels for free-to-air broadcasting licensees, but not subscription broadcasting licensees requiring firstly that all prime time (between 6 and 10.30pm) programs and secondly all news and current affairs programs be captioned. While the current Australian Human Rights Commission exemption supersedes the first requirement, all news and current affairs programs must still be captioned. Failure to meet either requirement is a breach of the Act and should be referred to our complaints section.

Some programming is automatically exempt from the captioning levels required in the BSA, including:

• Television programs that are not in English or mainly not in English;
• Non-vocal music only programs;
• Incidental or background music; and
• live, sports programming where unscheduled, extended coverage displaces a news program.

Some licensees and channels are also automatically exempt from the captioning levels required in the BSA, including:

• Community broadcasting and subscription television licensees;
• Commercial broadcasting licensees that have not commenced digital broadcasts;
• Commercial broadcasting licensees in their first year of operation; and
• SDTV and HDTV multichannels, that is channels that broadcast different content; (such as ABC2, Go!, One and HD versions of commercial channels), except for programs that have been previously broadcast with captions on a main channel.

Captioning requirements in the BSA do apply to simulcast channels, that is channels that provide the same program content as an analog program but in a digital format.

Currently, the BSA makes no reference to audio description.

Codes of Practice

The current 2004 Commercial Television Industry Code of Practice and 2004 Subscription Broadcast Television Code, both revised in 2008, operate under Section 123 of the BSA. Section 123 requires Free TV Australia and the Australian Subscription Television and Radio Association, the relevant industry representative groups, to develop Codes in consultation with the ACMA. Section 123A requires ACMA to periodically review both Codes. The Codes are the primary co-regulatory instrument in the Australian television industry. The relevant accessibility sections in these Codes are summarised below;

Commercial Television

Section 1.23 of the Commercial Television Industry Code of Practice requires that Licensees:

1.23.1   ensure that closed-captioning is clearly indicated in station program guides, in press advertising, in program promotions and at the start of the program;

1.23.2   exercise due care in broadcasting closed captioning, and ensure that there are adequate procedures for monitoring closed captioning transmissions;

1.23.3   provide adequate advice to hearing-impaired viewers if scheduled closed captioning cannot be transmitted. If technical problems prevent this advice from being provided in closed captioned form, it must be open captioned as soon as reasonably practicable;

1.23.4   when broadcasting emergency, disaster or safety announcements, provide the essential information visually, whenever practicable. This should include relevant contact numbers for further information.

Section 7.5 of the Code requires that Licensees:

will provide regular on-airinformation about the Code and its complaints procedures.

7.5.1     Licensees will broadcast 360 on-air spots each calendar year, across all viewing zones. This information must be closed captioned.

7.5.2     A reasonable proportion of this on-air information will also explain how viewers may obtain copies of the Code.

Subscription Television

Section 2.4 of the Subscription Broadcast Television Code requires that:

2.4   Where closed captioning programming is made available it will be clearly identified with program schedule information provided to the press and in program guides.

When a Licensee introduces closed captioned programming, or extends the range of programs captioned, it will consult with organisations representing deaf or hearing impaired and organisations specialising in providing closed-captioning.

Exemption Application

The Australian Subscription Television and Radio Association (ASTRA), the industry body representing subscription television channels, currently has an application to be exempt from the pprovisions of the Disability Discrimination Act (Cth) (DDA) before the Australian Human Rights Commission (AHRC).  If granted, the AHRC would not hear complaints against subscription television channels for breaching the DDA for up to five years in exchange for the channels undertaking to increase the levels of captioning across its programming.  See Current enquiries and consultations for more information.

Overseas Video Accessibility Legislation

• United Kingdom
• Canada
• USA

English speaking countries have a variety of instruments for regulating captioning. The United States, United Kingdom and Canada however are similar in that they require high levels of captioning, close to or at 100%, with in built exceptions that would remove access obligations if when financially or technically too difficult.

United Kingdom

Accessibility to television, amongst other communications media, in the United Kingdom is covered by sections 303, 304, 305 and 310 of the Communications Act 2003 which provide specifically for people with vision and hearing impairments. The Code on Television Access Services created under sections 303-305 and the Code on ElectronicProgramme Guides created under section 310 are the main instruments that make accessibility to television a priority issue. This has demonstrably increased access levels in the UK far beyond all comparable English-speaking jurisdictions and particularly Australia.

The UK regulatory approach than provides better access the Australian approach in anumber of ways:

• The Communications Act 2003 requires Ofcom, the UKcommunications regulator, to draw up, review and revise the Code on Television Access Services and Code on Electronic Programme Guides on a regular basis. In Australia, industry develops the code, for ACMA to review and approve;
• The UK has the dedicated Code on Television Access Services that covers all television. Australia regulates commercial broadcast and subscription broadcast under two separate codes. This separation appears arbitrary on the backdrop of the UK approach.
• Captioning levels in the UK Code on Television Access Services have incremental increases built-in. This secures much better long term outcomes than the fixed levels in Australia;
• UK captioning levels are set in the relevant code, making it simpler to change those levels. Australian captioning levels are fixed in Broadcasting Services Act 1992 (Cth), making increases more difficult;
• Legislated Australian captioning targets are lower than the UK levels, which are between 80% for most broadcasters and 100% for public broadcasters;
• The Australian codes deal only with captioning. The UK Code on Television Access Services covers not only closed captioning, but also audio description and signing. The UK approach avoids total discrimination against those people who rely on audio description or signing to access television;
• The minimum statutory target for audio description (AD) in the UK is 10% of programming.  Although Ofcom had previously rejected raising the statutory target to 20%, several broadcasters have set themselves a voluntary target of 20%.  The British Government has welcomed this, and noted that if actual levels of AD fall significantly below 20%, then it will consider imposing statutory targets of 20% in the future;
• The UKCode on Television Access Services provides guiding principles for captioning standards. The Australian codes do not address issues of captioning quality; and
• In accordance with Section 310(3) of the CommunicationsAct 2003, the Code on Electronic Programme Guides obliges UK providers to make electronic programme guides (EPGs) accessible to people with vision and hearing impairments. No Australian codes addresses accessibility of EPGs, which are particularly important as digital switchover occurs.

Canada

Accessibility to television, amongst other broadcasting services, in Canada is covered under Section 3(1)(p) of the Broadcasting Act 1958, which states that "programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose."

Under Public Notices CRTC 2007-54 and CRTC 2009-430, the Canadian Radio-television and Telecommunications Commission (CRTC), the Canadian communications regulator, has created more accessible television policy than Australia in anumber of ways:

• Canada covers all television access under its public notices. Australia regulates commercial broadcast and subscription broadcast under two separate codes, each with sections concerning accessibility. This separation appears arbitrary on the backdrop of the UK approach.
• Since 2007, under Public Notice CRTC 2007-54, Canada has set captioning levels at 100% of programming, superseding the previous level of 90%.Legislated captioning in Australia is less than one third of Canadian levels. The rising level required in the Australian Human Rights exemption will see Australia continue to lagat 85% of daily programming between 6am and 12 midnight in 2011. The gap between Canada and Australia is particularly notable when one considers that Canadian levels apply to French and English.
• Canada’s Public Notice CRTC 2009-430 indicates that captioning quality standards are very close to implementation. The Australian codes do not address issues of captioning quality.
• Under Public Notice CRTC 2009-430, Canadian broadcasters will need to introduce audio description as a license condition, from the next round of license renewals. This follows a long consultation period on audio description. Thus far, Australia has no requirements for audio description.

United States

Accessibility to television is covered under Section 713 of Communications Act 1934 relating to video programming accessibility and the related Part 79.1 of the Code of Federal Regulations covers captioning levels.

The basic requirements are:

• 100% of non-exempt new programming to be captioned.
• 75% of pre-rule programming to be captioned (programs before 2002 for digital programs).
• 100% of Spanish language programming to be captioned by 2010, with some exemptions.

There are two types of exemptions built into the regulations:

• Self implementing exemptions which automatically exempt programs between 2am and 6am, captioning that would cost more than 2% of gross revenue, programs primarily in a language other than English or Spanish and nonvocal, music programs; and
• Exemptions based on undue burden which include programs where video program service providers can apply to the FCC for an exemption on captioning that would be a significant difficulty or expense.

The UnitedStates also regulates the technology used to display captions with section 303 (u)of the Communications Act 1934 requiring that any television, locally produced or imported, with a screen larger than 13” must be able display captions.

New Zealand

There is no legislation in place covering captioning in NZ, although most of the captioning is paid for by Government grant. This is administered through NZ on Air and is shared among the three main television networks (TV1, TV2 and TV3). Television New Zealand (which runs TV1 and TV2) is the only captioning organisation operating in NZ and receives the Government grant.