Investigation Report No. 2950

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Nov 25, 2013 (3 years and 8 months ago)

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ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

1



Investigation Report No. 2950


File No.

ACMA2013/127


Licensee
s

TCN Channel Nine Pty Ltd
, General Television Corporation Pty Ltd


Station
s

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
)






ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

2

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
.30
pm.

As th
is complaint relate
d

to a
n 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 section
s

1
47
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
.30
pm on
Nine

s
primary channel
s
, including

TCN

and GTV
.
With t
he
fictional
setting in
an
apartment shared by young high achieving academics
, t
he entertainmen
t 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 licensee
s

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 Part

9D (which deals with captioning of television programs for the
deaf and hearing
impaired) applies to the licensee

the licensee will comply with that
provision;




1

Paragraph

147(b)
and section 149
of the
BSA

set out the ACMA’s role in investigating complaints
relating to
breaches of a licence condition.

2

Sect
ion 170 of the BSA
confers on the ACMA an additional power to conduct investigations
for the
purposes of the performance or exercise of any of its broadcasting, content and datacasting
functions
.

ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

3

Part

9D

Captioning of the BSA

Division

1

Introduction

130ZL


Designated viewing hours

Programs transmitted before 1

July 2014



(1)


For the purposes of the applicat
ion of this Part to programs transmitted before 1

July 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.

Division

2

Captioning obligations of commercial television broadcasting
licensees and national broadcasters

Subs
ection 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, t
he 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


submission
s

Nine’s

first response to the ACMA, dated 7 February

2013, included the following:

[...]

The Program under investigation comprises two episodes, 7:30pm
-
8:00
pm
(‘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].


ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

4

Second Episode

...Nine confirms that the Second Episode was broadc
ast 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 su
bsequent
checks of Nine's Media Proxy logger

[
which monitors and records Nine’s
broadcast
s
]
.

...

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
p
rogram
on GTV was affected by the same captioning issue as for the broadcast on TCN.

F
inding

The licensee
s

breached sub
s
ection 130ZR(1) of Part 9D

of the BSA
.

Reasons

Under
s
ubsection 130ZR(1) of
the BSA,

the licensee
s

were

required to provide a captioning
service for the program
,

as it was broadcast
on the licensees


core/primary commercial
televisio
n service, during the designated viewing hours of

6pm and 10.30pm. That is, as

the
program
was

broadcast
on
TCN

and GTV
from
7
.30
pm

to 8.30pm
,

during the designated
viewing hours
,

a

caption
ing 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, t
he 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 re
levant 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 visu
als 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 b
y 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 feedb
ack, which was
then confirmed when

it
checked the
logger
wherein

it was established that two (TCN and GTV) services were
affected.





ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

5

Issue 2: Does section
130ZUB of the BSA
apply?

Relevant provision

Division

2

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 com
plied with the
provision.

Licensee
s


submission
s

Nine
’s response to the ACMA dated
7 February

2013 included the following concerning
the
relevance of
s
ection
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
‘disregard
ed breach’ under the Act [BSA].

...As this error was of a technical nature and
could not be reasonably foreseen
give
n

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 inclu
ding 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 t
he 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 su
ccessful caption transmissions prior to the date of
9

January 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
ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

6

path, which cannot be capture
d

before broadcast, the captions wer
e
intermittent.

Clarification was sought and i
n its second response to the ACMA on 16 A
pril 2013, the
licensee
s

advised

the following:

[...]


[F
rom the
licensees


ana
lysis 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.

T
he transmission
chains

are constantly monitored for broadcast c
ontinuity
including capt
ions.

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 ca
ptions.

This was the firs
t time this issue was identified since commencement of
transmission from Nine’s National Playout Centre
.

A new generation of
W
oh
ler
cards with the latest version of software was
deployed across all inserters in September 2012.

A monitoring station was esta
blished that enables “intermittent” captions to be
identified prior to broadcast. If “intermittent” captions are identified, a new
caption file is sourced from [
c
aption
ing

s
ervice

p
rovider]
&

embedded prior to
broadcast r
eplacing the original captions.

Clarification was sought again and i
n i
ts third response dated

2
0

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 Playo
ut 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 th
e 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 prog
ram is put in system
where captions came off tape, Nine now orders a new

file from
[
c
aptioning
s
ervice
p
rovider]

to ensure the old material does not experience faults when
passed

through the new systems at NPC.

ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

7

This is the first time staff at the NPC becam
e 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 s
et 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 stre
ams 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
Pr
ogram'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
24

hours a

day. Nine did che
ck 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 'unfor
seen 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 du
ring 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
ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

8

faults when passed through the new systems at
Nine’s National Playout Centre
(NPC).
..

[...]

In its 9 July 2013 letter Nine summarised the remedial measures it has taken since the fault
was brought to its attention:

[...]

Updating the software in
one of

the Wohler caption inserters and monitor this
u
nit prior to upgrading all of the transmission path inserters to en
sure
compliance with the [BSA].

Establishing a monitoring system on 23 January 2013 that enables “intermittent”
captions to be identified prior to broadcast. In the event “intermittent” cap
tions
are identified, a new caption file is sourced from [captioning service provider
and] embedded prior to broadcast r
eplacing the original captions.

To ensure further compliance with the [BSA], Nine now orders a new file from
[captioning service provide
r] to ensure the old material where captions came off
tape does not experience faults when passed t
hrough the new systems at NPC.

[...]


F
inding

In accordance with

subsection 130ZUB(1)

of the BSA, the

breach

of

subsection 130ZR(1) of
the BSA
conceded by
the licensee
s

(
TCN Channel Nine Pty Ltd and

General Television
Corporation Pty Ltd)
,

should be disregarded
in determining whether the licensee
s

ha
ve

complied with
their

captioning obligations under that provision.

The licensee
s

ha
ve

accordingly not breache
d the licence condition in paragraph 7(1)(o) of
Schedule 2 to

the BSA.

Reasons

Under subsection 130ZUB(1)

of the BSA
,

a breach of a provision of Division 2 (captioning
o
bligations of commercial television broadcasting licensees and national broadcasters) can
be disregarded
in determining whether the
licensees

ha
ve

complied with
their

captioning
obligations
if the breach was both attributable to significant difficulties of

a technical or
engineering nature; and those difficulties could not reasonably have been foreseen by the
licensees
.

Prior to consideration of subsection 130ZUB(1), the following
events (in chronological order)
are

noted:



The program was captioned in July

2009.



The program
’s captioning

was
successfully transmitted

from
Nine’s
Willoughby
studios

(in Sydney)

using older systems
.



From April
2012
,

all Network
Nine
programming
has been
transmitted from the
National Playout Cent
re
(in Frenchs Forest, Sydney)
using new systems.

ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

9



The
captioning of the
second episode of the program was unsuccessfully transmitted
from the National Playout Centre
to TCN and GTV
on 9 January 2013.



On 23 January 2013 the licensee
s

established a monitoring station to detect
intermitten
t captioning problems
.

Significant
difficulties of a technical or
engineering nature:
Nine

advised that the
fault
stemmed from a mismatch of
‘old material’ (that is, programs which were captioned to tape in
2009

and which were previously broadcast from the older systems in Willoughby
)
as opposed
to
being broadcast from new systems at the National Playout Centre
.

In its 16 April 2013 response,
Nine

provided more detailed analysis whereby intermittent
captioning on

the first line combined with constant captioning on the second line resulted in
certain ‘
compression / encoding’ equipment in different licence areas being affected.

Nine

advised:

The

nature of this fault resulted in some receive systems decoding captions

as
'OK' and

other systems displaying intermittent captions.

Nine

offered the
following possible reason for the fault:

...
an apparent compatibility issue between the tape based caption process in
2009 & Nine's file based broadcast system in 2013.

Given
the
analysis
as to why or how the
fault

occurred, the
difficulty

can

be
described

as
being
of a
significant

engineering or technical

nature
.

Human error or any other factor is
unlikely to have played a role in this instance.

Difficulties that could not rea
sonably have been foreseen
:
Nine

advis
ed no
intermittent
captioning issue
s

had been iden
tified when broadcasting from the Willoughby studios

prior to
April 2012
.

This was the first time since
transitioning to the National Playout Centre

that such
a

fault
was identified. After investigation

Nine

advised that it could only
establish the fault
rested with a mismatch of old
er captioned

material be
ing passed through
the
new systems at
the
new venue
.

The licensee
s

demonstrated
their

monitoring systems at Attachm
ent B
displaying

the seven
stages at which monitoring of captioning
integrity
takes place.

Therefore, having regard to the reasonable probative eviden
ce available that this fault had

not
previously caused an interruption to
either GTV’s or TCN’s
captioning

services

and that the
systems in place to monitor captioning integrity
we
re as exhaustive as possible
,

the ACMA is
of the view that it was a technical difficulty that could not reasonably have been
foreseen

by
the licensee
s

on this occasion
.

Other conside
rations

The ACMA is mindful that the date of broadcast of the program was 9 January 2013 and that
the licensee
s

established a monitoring station after that date, on 23 January 2013, to detect
intermittent captioning problems and
for
captions
that
came off
tape,
a new captioning file is
ordered and embedded prior to broadcast. As this system was not in place during the lead up
to the broadcast of the program,
the licensees’

monitoring systems failed to detect the
intermittent captioning problems prior to this date.

ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

10

Intermittent captioning has not been identified
by the licensee
s

since the 9 January 2013
broadcast of the program.
The ACMA notes the measures undertaken by the
licensees to
prevent a recurrence of the fault.

Accordingly the ACMA is of the view that
the licensees (
TCN Channel Nine Pty Ltd

and
General Television Corporation Pty Ltd
)

b
reached
subsection 130ZR(1) of the BSA by failing
to provide a captioning service
in accordance with that subsection, but that the breach should
be disregarded in accordance with subsection 130ZUB(1) of the BSA. It
would then follow

that
the licensee
s

ha
d

not breached the licence condition in paragraph 7(1)(o) of Schedule 2 of
the BSA.

However, the ACMA notes that these events will inform any future ACMA decision
-
making
involving consideration of technical difficulties that could not reasonably have been foreseen
by the licensee
s
.





ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

11

Attachment A


CONSIDERATIONS


THE QUALITY OF
CAPTIONING

Introduction

The ACMA is committed to ensuring that the captioning services provided by television
broadcasters give the deaf and hearing
-
impaired community meaningful access to television.


As part of this commitment the ACMA uses the quality i
ndicators set out below to assess the
overall readability and comprehe
nsibility of closed captioning.


In considering whether a particular broadcaster has satisfied the captioning obligations, the
ACMA has regard to all of the relevant quality indicators
and, most importantly, the cumulative
effect of their application rather than assessing a broadcast against each individual criteria.

Quality Indicators

Grammar and Presentation

1.

In
assessing c
losed
c
aption
s

during
p
rograms,
the ACMA will have regard to the

extent
that
:


i.

punctuation is used to make captions as easy as possible for viewers to read;


ii.

punctuation conveys, as much as possible, the way speech is delivered;


iii.

sentence case is used where practical
;


iv.

spelling is, as far as practicable
,

accurate;


v.

repetition of information that is alrea
dy on the screen (such as the name of a
presenter or temperatures in a weather report) is avoided;


vi.

as far as practicable, closed captions do not overlap or impede any text based
information already on the screen
.

Tim
ing and Editing

2.


In assessing closed captions during programs, the ACMA will h
ave regard to the
extent that:

i.

c
losed
c
aption
s

coincide with the relevant soundtrack, so that the relation
ship

between sound and visuals is preserved for the
viewer
;


ii.

c
losed
captions stay

as close as possible to the original wording while allowing the
viewer
enough time to
read the captions

and still watch the action of the
p
rogram;


iii.

where time allows, and whe
re practical, closed
captions are verbatim (word for
word);


iv.

having
regard to the intended audience,
text reduction remains faithful to the script,
and vocabulary and sentence structure is preserved as much as possible;


v.

line breaks reflect the natural flow of
a

sentence and its punctuation;

ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

12


vi.

c
losed
c
aption
s are

not
consistently
more than three lines in length (the preference is
for one
-
line or two
-
line captions to be used);


vii.

during
l
ive
c
losed
c
aptioning:


a)

caption
s

coincide as closely as possible with the relevant soundtrack, so that
the relationship between the visu
als and the sound is preserved for the
viewer
;

b)

the priority is always to transcribe as much of the spoken content of the
program as possible is transcribed.

Identification of Different Speakers

3.

In
assessing c
losed
c
aption
s

during
p
rograms,

where there are different speakers,

the
ACMA will have regard to the extent that

broadcasters have ensured that,
as far as
possible, the captions clearly identify and distinguish each speaker. This should be
done through varying the colouring of the clos
ed captioning, and as far as possible,
varying the positioning of the closed captions (see
4

and
5

below).

Colour and Font

4.


In
assessing c
losed
c
aption
s

during
p
rograms,
the ACMA will have regard to the
extent that
:

i.

white
c
losed
c
aption
s

are

used as much as possible as they are the easiest to
read;


ii.

sound effects are identified using a different colour and the same colour is used for all
sound effects throughout the
p
rogram;


iii.

if using colour to denote different speakers, as far as possible, a
different colour

is

used

for each speaker.

Positioning

5.

In
assessing c
losed
c
aption
s

during
p
rograms,
the ACMA will
have regard to the extent
that:

i.

as far as possible
, positioning of
c
lose
d
c
aptions avoid
s

obscuring important
information on the screen, such as
action
, super
imposed text
, graphic text descriptors
or act
ivities, or the speaker’s lips.

ii.

as far as possible, positioning is vari
ed to identify who is speaking.

Sound Effects

6.

In
asses
sing c
losed
c
aption
s

during
p
rograms,
the ACMA will have regard to the extent
that
:

i.

any noise or music that enhances the visuals, contributes to characterisation or
adds
atmosphere, is captioned;

ii.

a
viewer

does not receive any more information than a hearing viewer would get.




ACMA investigation report


t
he Big Bang Theory

broadcast by TCN and GTV on 9 January 2013

13

Attachment B