4DDB - ACMA Investigation Report 2753

Investigation Report No. 2753

File no. ACMA2012/158

Licensee Darling Downs Broadcasting Society Inc.

Station 4DDB Toowoomba QLD

Type of service Community radio

Name of program Saturday Racing

Date of broadcast 7 January 2012

Issues  Broadcasting advertisements  Representing the community interest

Relevant legislation Clauses 9(1)(b) and 9(2)(b) of Schedule 2 to the Broadcasting Services Act 1992

Date finalised 8 May 2012

Decision  Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements].  No breach of clause 9(2)(b) of Schedule 2 to the Broadcasting Services Act 1992 [representing the community interest].

ACMA Investigation Report – 4DDB – Compliance with licence conditions

Error: Reference source not found

The complaint On 19 January 2012, the Australian Communications and Media Authority (the ACMA) received a complaint that the licensee of 4DDB, Darling Downs Broadcasting Society Inc, broadcast advertisements during the Saturday Racing program on 7 January 2012. The complainant also alleged that 4DDB was not continuing to represent the general community interest in the Toowoomba RA2 licence area.

The service 4DDB has provided a community broadcasting service in the Toowoomba RA2 licence area since 1 November 1979 and its current licence is due to expire on 1 March 2015. The community interest of the licence, as allocated and last renewed, is the general community in the Toowoomba RA2 licence area. The licence area comprises the local government areas of Toowoomba, and certain districts within the local government areas of Cambooya, Crows Nest, Gatton, Jondaryan, Pittsworth and Rosalie in Queensland.

The program Saturday Racing is broadcast on Saturdays between 8.00 am and 5:00 pm. Previews and tips for the day’s horse racing, as well as Radio TAB’s live call of races, are broadcast during the program.

Assessment The assessment is based on submissions from the complainant and the licensee, a copy of the broadcast provided to the ACMA by the licensee, a copy of the program schedule for the week commencing 20 February 2012, and information provided to the ACMA by the licensee in its application for the renewal of its licence. Issue 1: Broadcasting advertisements

Relevant legislation Relevant provision of the Broadcasting Services Act 1992 (the Act) Schedule 2 – Standard Conditions Part 5 – Community Broadcasting Licences 9 Conditions applicable to services provided under community broadcasting licences

(1) Each community broadcasting licence is subject to the following conditions: […] (b) the licensee will not broadcast advertisements […]

Part 1 – Interpretation 2 Interpretation – certain things do not amount to broadcasting of advertisements

(1) For the purposes of this Schedule (other than paragraphs 7(1)(a), 8(1)(a), 9(1)(a), 10(1) (a) and 11(1)(a)), a person is not taken to broadcast an advertisement if: (a) the person broadcasts matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter; and (b) the person does not receive payment or other valuable consideration for broadcasting the advertising matter.

2 (2) For the purposes of this Schedule […] the broadcasting by a community broadcasting licensee of: (a) community information material or community promotional material; or (b) a sponsorship announcement that acknowledges financial support by a person of the licensee or of a program broadcast on the service provided under the licence, whether or not the announcement: (i) specifies the name and address of, and a description of the general nature of any business or undertaking carried on by the person; or (ii) promotes activities, events, products, services or programs of the person; or (c) material that announces or promotes the service provided under the licence, including material (whether by way of the announcement or promotion of activities, events, products, services or otherwise) that is likely to induce public support, whether financially or otherwise, or to make use of, the services provided under the licence; is not taken to be the broadcasting of an advertisement.

Complainant’s submission The complainant stated that:

Live streaming 4TAB is done by 4ddbfm on Saturday afternoons, I have enclosed copies of the breaches; the advertisements are listed by date and time; these were copied from the broadcast as it went to air.

Licensee’s submission The licensee stated in a letter dated 16 February 2012 to the ACMA that:

[...] advertisements were broadcast on 7 January 2012 between 12 noon and 5:00 pm by accident. This was human error and the coordinator has been spoken to regarding this mistake. We certainly have no advertising with any of the companies involved or receive any remuneration.

Finding The licensee broadcast advertisements during the Saturday Racing program on 7 January 2012, in breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.

Reasons What is an advertisement? The Act does not provide a definition for an ‘advertisement’. In investigating complaints, the ACMA has previously had regard to the following:  The High Court’s consideration of the meaning of the term ‘advertising’ in the context of the former Broadcasting Act 1942:

It would seem to be used in a broad general sense which would encompass any broadcast or telecast of material ‘designed or calculated to draw public attention’ to something … regardless of whether the broadcast or telecast ’serves a purpose other than that of advertising’.1

1 Australian Capital Television Pty Ltd and the State of New South Wales v The Commonwealth (1992) 177 CLR 106 at 166.

ACMA Investigation Report – 4DDB – Compliance with licence conditions 3 Error: Reference source not found  The plain English definition in the Macquarie Dictionary (Fourth Edition), which defines ‘advertisement’ as follows: Advertisement: noun any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom, etc. Accordingly, an advertisement is potentially any broadcast that is intended to promote a product or service, regardless of whether payment in cash or in kind has been received by a licensee, or by any employee, agent, contractor or volunteer of the service. Who is ‘an ordinary, reasonable listener’ In determining whether the requirements of the Act have been met, the ACMA has previously considered what ‘an ordinary, reasonable listener’ would have understood the broadcast concerned to have conveyed. Courts have considered ‘an ordinary, reasonable listener’ to be:

a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. An ordinary, reasonable listener does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2 Saturday Racing broadcast on 7 January 2012 A review of the material broadcast between 12:00 pm and 1:00pm on 7 January 2012 shows that advertisements were broadcast, as follows:

At 12:25 pm:

It’s the best racing and sports betting guide you have ever seen. The Gold Coast Bulletin’s Green Guide. With detailed form on every horse on every surface for every race, plus win and place ratios, the new Green Guide is the winner’s gospel to racing. Pick up the Green Guide today and you could go into the draw to win a trip for two to London to witness Black Caviar race at Royal Ascot. So, to better your bet, pick up the all new Green Guide, the best racing guide inside the Gold Coast Bulletin every Friday and Saturday. It’s a winner.

At 12:36 pm:

Throughout Queensland, South Australia and the Northern Territory, this is Saturday Racing on Radio TAB.

At 12:40 pm:

The number is 13 19 39 for both your fixed price and Tote investments. Just be sure to be clear to the operator which you want.

At 12:41 pm:

Australian bred, Inglis sold. Inglis Classic has produced six group one winners in the last 12 months, including Sincero, Sincero in the middle goes to the front the Wyong wonder’s done it!, Hurtle Myrtle, Hurtle Myrtle gets the upper hand for Ollie, Hurtle Myrtle too strong, drew away. The Inglis Sydeny Classic Yearling Sale, January 22 – 24 at Newmarket. For catalogues and information, go to Inglis.com.au.

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164–167.

4 At 12:56 pm:

This is Saturday Racing on Radio TAB. Do any of the exemptions apply to the broadcast of the advertisements? The licensee has submitted that it has no advertising arrangement with any of the companies mentioned and that it did not receive any remuneration to broadcast any of the advertisements. However, the licensee must also have broadcast the advertisements as an accidental or incidental accompaniment to the broadcast of other matter before it can be taken not to have broadcast advertisements. The licensee has broadcast advertisements, as it broadcast advertisements that were not an accidental or incidental accompaniment to the broadcast of other matter. These are addressed below. Were the advertisements an accidental accompaniment to other matter? There is no definition of the term ‘accidental’ in the Act. In the past, the ACMA has used the ordinary meaning of the word. The Macquarie Dictionary (Fourth Edition) defines ‘accidental’ as: accidental: adjective happening by chance or accident, or unexpectedly. Material of an advertising character may be an ‘accidental accompaniment’ to the broadcast of other matter only if it was broadcast by the licensee:  by mere chance, or  casually, without being planned.

Broadcasts of material of an advertising character that are deliberate, or due to some arrangement or understanding, would not be considered an ‘accidental accompaniment’ to the broadcast of other matter. While the licensee has submitted that the broadcast of the advertisements occurred as a result of human error, the number of advertisements identified from one hour of broadcasting cannot be considered to be an accidental accompaniment to the broadcast of other matter during that hour. It does not appear that the material of an advertising character identified above was broadcast by mere chance or casually. Accordingly, the advertisements cannot be considered to be an accidental accompaniment to the broadcast of other matter. Were the advertisements an incidental accompaniment to other matter? There is no definition of the term ‘incidental’ in the Act. In the past, the ACMA has used the ordinary meaning of the word. The Macquarie Dictionary (Fourth Edition) defines ‘incidental’ as: incidental: adjective happening or likely to happen in fortuitous or subordinate conjunction with something else. Material of an advertising character may be an ‘incidental accompaniment’ to the broadcast of other matter only if a reference to a product, service or organisation was secondary to the subject of the broadcast or occurred as a minor part of the broadcast. This may include a casual reference to a product or service where that type of casual reference is likely to occur in the context of a discussion of some other thing.

ACMA Investigation Report – 4DDB – Compliance with licence conditions 5 Error: Reference source not found

In the Rothmans case, the Court stated:

It is not difficult to think of circumstances under which a licensee might televise matter of an advertising character as an incidental accompaniment of televising other matter; for example a televised news item shows a street scene with advertising billboards in the background. The transmission may be accidental, in the sense that the staff of the licensee do not notice the background billboard. But it may also be deliberate. The action—which represents a genuine news item—happens to take place in front of the billboard so that if the news item is to be used the billboard must also be shown. Under such circumstances the exclusion of ‘incidental accompaniment’ would apply.3

While the Rothmans case deals with a matter involving a television licensee, the ACMA considers the definition of ‘incidental accompaniment’ as useful.

None of the material of an advertising character identified above was broadcast as secondary to the subject of the broadcast or occurred as a minor part of the broadcast. Accordingly, the advertisements cannot be considered to be an incidental accompaniment to the broadcast of other matter. Certain things do not amount to broadcasting advertisements The Act provides that the broadcast of certain promotional material is not taken to be the broadcast of an advertisement.4 It is noted that:

 the material of an advertising character was not sponsorship announcements – there was no acknowledgement of financial support by a sponsor of the licensee or a program broadcast on the service;  the material of an advertising character was not community information material or community promotional material; and  the material of an advertising character did not promote the licensee’s service.

Accordingly, the licensee is taken to have broadcast advertisements.

Issue 2: Representing the community interest Relevant sections of the Broadcasting Services Act 1992 Schedule 2 Part 5—Community broadcasting licences 9 Conditions applicable to services provided under community broadcasting licences […]

(2) Each community broadcasting licence is also subject to the following conditions:

(b) the licensee will continue to represent the community interest that it represented at the time when the licence was allocated or was last renewed;

Complainant’s submission The complainant stated that:

[…] The words “Community Radio” do not exist at this station; no effort is made to extend anything but sport.

3 At 691 4 Clauses 2(1) and 2(2) of Schedule 2 to the Act.

6 […]

Toowoomba has an active and large community awareness scheme; we are “The Garden City”, famed for our flowers and gardens, not for the races and football; Toowoomba Regional Council is an amalgamation of 8 shires and covers an enormous area.

Firstly, with reference to the 4DDB website (102point7fm.com.au). The website is totally skewed to football and racing. There is absolutely no reference to the vast majority of 4DDB programming. The website does not "represent the community interest".

Licensee’s submission The licensee stated in a letter dated 16 February 2012 to the ACMA that:

Since our last licence renewal, our programming has changed very little to what was provided to the ACMA previously. We have not replaced any programming but have added to our line-up.

On Tuesday night from 7:00 pm, we have included youth programming that features music, current affairs, local musicians and issues that affect our community each and every day.

On a Thursday night from 11:00 pm to 12:00 midnight, we have a youth program that talks about local issues, local bands, weekend gig guide with skits and comedy.

On Friday night from 7:00 – 9:00 pm, we have a program, America’s Most Wanted, hosted by President Todd Baillie, that features the very latest chart-topping country music, mainly in the States.

On Sundays from 2:00 to 6:00 pm every second week, we have incorporated wonderful programming for our elderly with Silver Memories, music and programs from the “Golden Age of Radio”.

From 10:00 pm on Sunday, we have a Christian program, Let the Bible Speak with Minister Chris Herd.

This station provides more programming now for our entire community than what it ever has since it began.

Finding The licensee is continuing to represent the general community interest in the Toowoomba RA2 licence area that it represented when the licence was last renewed and, accordingly, is not in breach of clause 9(2)(b) of Schedule 2 to the Broadcasting Services Act 1992.

Reasons The 4DDB licence was last renewed for the five year period from 2 March 2010 to 1 March 2015, to represent the general community interest of the Toowoomba RA2 licence area. As stated at page 4 of the ACMA’s Community Broadcasting Participation Guidelines5 (the Guidelines):

The Act does not define ‘community’ or ‘community interest’ but services should:

6 … meet the needs of a local community or of a particular sector of the community .

The Guidelines also include information on the same page about what constitutes a ‘community interest’:

A “community interest” is a common interest shared by a group of people in a community (including audience and participants) that a community broadcasting licensee has identified in its application at the time of allocation or renewal. A community interest may be general in nature (for example, representing the community’s needs within the general geographic area of a licence) or it may be specific (for example, representing the needs of the Indigenous community within a licence area).

All community broadcasting licensees should be familiar with the community interest specified in their broadcasting service licence certificate. This is fundamental to their effective representation of their community interest and proactively encouraging audiences and like-minded members of the community to participate in the operations and programming of their services.

Further, the Guidelines state at page 24 that:

In the ACMA’s experience, licensees that continue to represent their community interest have appropriate organisational structures, regularly review the needs of the communities they serve, and have diverse program schedules which reflect the needs of the communities they serve.

The Guidelines also differentiate between general and specific community interests at page 5, with a general community interest being understood as follows:

 Focus is geographically-based - the interests of the entire community of the geographic area of the licence.

 Includes those who spend a substantial amount of time in the licence area for work, study or leisure purposes.

A licensee may focus on several key needs (for example, ethnic, Indigenous and youth, or some other combination) that is reflective of the needs of the community in a licence area. This is partly because many other broadcasting services may already be meeting some of the community’s needs in the licence area.

To ascertain whether 4DDB is continuing to represent its general community interest, it is appropriate to look at the following matters:  Does it have appropriate organisational structures;  Does it regularly review the needs of the community it serves;

5 http://www.acma.gov.au/webwr/_assets/main/lib310667/community_broadcasting_participation_guidelines.pdf 6 Source: Explanatory memorandum to the Broadcasting Services Bill 1992 (at page 23).

8  Does it have a diverse program schedule which reflects the needs of the community it serves; and  Does it focus on several key needs of the community that are not already being met by other broadcasting licences in the licence area. Does the licensee have appropriate organisational structures? According to information provided with the licensee’s application for the renewal of its licence, the rules of association provide for the following organisation structure:  a Management Committee of 11 members, elected at the Annual General Meeting (AGM), with each member holding office for a term of no more than two years;7

 four office bearers (President, Vice President, Secretary and Treasurer), who are elected by the Management Committee from the 11 members at its first meeting following the AGM;8

 one committee (Broadcasting Standards Committee);9 and  eight categories of membership (Ordinary, Life, Honorary Life, Corporate, Family, Concessional, Community Organisation and Associate). While the licensee has organisational structures that enable members of the general community in the licence area to participate in the operations of the service to some extent, it is noted that the licensee is in the process of amending its constitution. Does the licensee regularly review the needs of the community it serves? In order to meet community needs in a licence area, community broadcasting services must be responsive to community needs. Community broadcasting services remain responsive to community needs when they identify and monitor those needs, encourage members of the community to provide feedback about programming, and respond by implementing appropriate programming changes. They also need to encourage members of the community to be directly involved in the selection and provision of programs. According to information provided with the licensee’s application for the renewal of its licence, it regularly reviews the needs of the community it serves by taking the following actions:  publishing a quarterly newsletter, Wavelength;  regularly monitoring all media to assess what is and is not being provided by other local media outlets; and  broadcasting on-air announcements, seeking feedback about the service and its programming.

7 One of the measures agreed during the renewal of the 4DDB licence has yet to be completed, that is, to review and amend the constitution so that it aligns with the constitution template developed by the Community Broadcasting Association of Australia (CBAA) for use by community broadcasting services. 8 The CBAA’s constitution template contains provision for office bearers to be elected by the members of an association. 9 In the Codes of Practice Checklist at Appendix 1 of the Community Radio Broadcasting Codes of Practice 2008, one of the policies that community broadcasting licensees should have in place is in the area of programming (page 14) and one of the activities that a community broadcasting licensee may undertake to encourage community participation is to have committees (page 15).

It is noted that the licensee has:  formalised relationships with the councils in the local government areas within the Toowoomba RA2 licence area, including the promotion of local government events and activities, and  daily round-ups of news from the Toowoomba Chronicle and the Courier Mail.

In addition, the licensee encourages members of the community to be directly involved in the selection and provision of programs. The program schedule for the week commencing 20 February 2012 shows that there were 36 presenters who participated in the provision of programs. Consequently, the licensee undertakes regular monitoring of the needs of the general community in the licence area to enable it to respond to those needs in its operations and programming. Does the licensee have a diverse program schedule which reflects the needs of the community it serves? According to 2006 Census data, the Toowoomba RA2 licence area has the following characteristics:  there were 133,676 persons, of whom 87% were born in Australia and 93% who spoke only English at home;  77% of the licence area population were aged 15 years and over, with 12% aged 65 years and over;  86% of the licence area population identified as Christian (including Catholic, Anglican, Uniting, Lutheran, Presbyterian and other denominations), with 13% identifying as having no religion. The program schedule for the week commencing 20 February 2012 shows that 4DDB broadcast a range of programs for the general community in the licence area, including:  morning breakfast and afternoon drive-time programs;  news programming;  ethnic programming, including for the Filipino, Dutch, Bavarian and African communities;  music programming, including country, jazz and folk;  sports programming, including racing; and  a Christian program.

Consequently, the licensee has a diverse program schedule which reflects the needs of the community it serves.

10 Does the licensee focus on several key needs of the community that are not already being met by other broadcasting licences in the licence area? Each community broadcasting service has a responsibility to provide programming of local significance to their community, particularly locally-produced programming that is not provided by other broadcasting services available in the licence area. It is noted that the community in the Toowoomba RA2 licence area is able to receive a range of radio and television services, including:  Television: two national (ABC, SBS) and three commercial (RTQ, STQ, TNQ) broadcasting services; and  Radio: four national (4ABCFM, 4ABCRN, 4QS, 4JJJ), four commercial (4AK, 4GR, 4RGD, 4WK) and two community (4GOD, 4DDB) broadcasting services. The range of programming provided by 4DDB, as noted from the program schedule for the week commencing 20 February 2012, complement the programming provided by other broadcasting services available to the community in the Toowoomba RA2 licence area. These programs include ethnic and sports programming. Conclusion The licensee is continuing to represent the general community interest of the Toowoomba RA2 licence area that it represented when the licence was last renewed.

Action taken

It is noted that the licensee reiterated on 2 May 2012 that the advertisements were broadcast as a result of human error and that the person responsible has since been re-trained. The ACMA will continue to monitor 4DDB’s compliance with its licence conditions and performance in this regard.

ACMA Investigation Report – 4DDB – Compliance with licence conditions 11