TV4MR - ACMA Investigation Report 2959

Investigation Report No. 2959

File No. ACMA2013/151

Licensee Channel Seven Perth Pty Ltd

Station TV4ME

Type of Service Datacasting Service

Name of Content Psychic TV

Date of 7 January 2013 Transmission

Relevant Broadcasting Services Act 1992 – Schedule 6 Legislation/Code  Clause 14 (Condition relating to category A television programs)  Clause 18A (Genre conditions do not apply to advertising or sponsorship material)

Summary of view  No breach of subclause 14(1) of Schedule 6 to the Broadcasting Services Act 1992 (the Act) (provision of a datacasting service in breach of licence condition).

ACMA Investigation Report – Psychic TV transmitted by TV4ME 7 January 2013 Error: Reference source not found

The complaint

On 8 January 2013, the Australian Communications and Media Authority (the ACMA) received a complaint from a member of the public, alleging the licensee of datacasting service TV4ME, Channel Seven Perth Pty Ltd (the licensee), had breached its licence conditions, by transmitting Psychic TV:

[...] on the basis that it is primarily a lifestyle program for entertainment purposes and does not provide factual information.

Datacasting services

The provision of datacasting services is regulated under Schedule 6 to the Act. Licensees providing datacasting services are prohibited from providing certain genres of television programs (‘category A’ and ‘category B’ television programs), subject to specified exceptions. The simplified outline under clause 1 of Schedule 6 to the Act states that the ‘restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services’. Under clauses 17 to 20AA of Schedule 6 to the Act, the genre restrictions do not apply to a range of content, including ‘advertising or sponsorship material’.

The content

The complainant alleged that Psychic TV, transmitted by the licensee falls into the ‘infotainment or lifestyle’ program genre. The TV4ME website1 provides the following synopsis for Psychic TV:

Connect with Australia's expert mediums, psychics and clairvoyants - live and interactive. A team of specialist, hand selected psychics are ready and waiting for your call or text.

Assessment

This investigation is based on:  a recording of the content in question, provided by the licensee  the complainant’s submission  the licensee’s submission  publicly available information, the sources of which are identified in the report.

1 TV4ME Website www.television4me.com.au/programs/psychic-tv ,accessed 28 January 2013.

Issue: Is Psychic TV a category A television program?

Relevant legislation Schedule 6 to the Act contains the following provisions that are relevant to this issue: 14 Condition relating to category A television programs

(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be: (a) a category A television program; or (b) an extract from a category A television program.

(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:

(a) the extract is not longer than 10 minutes; and2

(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and

(d) having regard to:

(i) the nature of the extract; and

(ii) the circumstances in which the extract is provided;

it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.

18A Genre conditions do not apply to advertising or sponsorship material

The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.

Definitions provided under Schedule 6 to the Act that are relevant to this investigation are at Attachment A.

Complainant’s submission In correspondence to the ACMA, received 8 January 2013, the complainant submitted:

I refer to a previous investigation of TV4ME conducted in 2012 by ACMA (Investigation Report No. 2814 [...]).

As outlined in this investigation the licensee is permitted to datacast content providing it is not a wholly or substantially infotainment or lifestyle program.

2 There is no paragraph 14(2)(b) in Schedule 6.

of 7 Error: Reference source not found I believe that broadcast of the Psychic TV series (website: http://www.psychictv.com.au/) breaches this license condition on the basis that it is primarily a lifestyle program for entertainment purposes and does not provide factual information.

The program runs daily on TV4ME for 90 minutes (according to the TV guide provided at http://www.television4me.com.au/tv-guide) and therefore I believe cannot be considered an extract of another entertainment program.

Psychic TV themselves acknowledge that their content is primarily an entertainment service in their disclaimer on their public website as follows; “… This entertainment service provided by Interactive Media Pty Ltd.” (See top banner with call in and payment details).

Also as outlined in their Terms and Conditions online: “This service is for entertainment purposes only. Full terms and conditions at www.PsychicTV.com.au.”

Given this clear acknowledgement it seems unnecessary to point further to the lack of evidence to support the claims made by psychic services including mediums, tarot readers, clairvoyants, astrologists and spiritual healers.

Licensee’s submission The Licensee submitted:

As the ACMA would be aware, clause 18A of Schedule 6 of the Act provides that “the conditions set out in clause 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material”. As noted by the ACMA in Investigation Report No. 2901, “an advertisement is potentially any material that is intended to promote a product or service, regardless of whether payment in cash or in kind has been received by the licensee”.

The program Psychic TV is a presenter based program for the exclusive purpose of promoting a premium rate phone service. The presenters refer to the premium rate phone service frequently and direct viewers to call in regularly throughout the program. The phone number and charging information for the service are prominently displayed throughout. Given that Psychic TV is advertising material the genre restrictions do not apply, in accordance with clause 18A.

Finding

The licensee did not breach subclause 14(1) of Schedule 6 to the Act when it transmitted Psychic TV on 7 January 2013. Psychic TV is considered to be an advertisement for a premium rate telephone service. Therefore, it is not necessary to consider whether the content is a category A television program.

Reasons What type of content is Psychic TV? Schedule 6 to the Act defines advertising and sponsorship material as:

[...] advertising or sponsorship material (whether or not of a commercial kind).

The Act does not contain a definition of ‘advertisement’. In investigating complaints, the ACMA has previously had regard to the following:  The High Court considered 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’3

 The Macquarie Dictionary 5th Edition defines ‘advertisement’ as:

[...] 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 material that is intended to promote a product or service. This is regardless of whether payment in cash or in kind has been received by a licensee, or by an employee, agent, contractor or volunteer of the service. Based on this construction, it is considered that Psychic TV is advertising material for the following reasons:  Psychic TV depicts a presenter, whose apparent purpose is to promote a phone service by interviewing psychics, facilitating psychic readings and spruiking the talents and services of the psychics on offer. The presenter encourages viewers to contact these psychics via the premium rate telephone service, voicemail and short message service (sms).  The phone numbers and pricing for the premium charge phone service are displayed prominently and constantly on the screen.  The presenter refers consistently to the phone numbers and option numbers for each psychic, drawing attention to and promoting the phone service.  Callers are enticed to make additional calls to the phone service for more detailed information and readings, other than those featured in the discussion between the presenter, the psychic and callers to the service. It is noted that the duration of the content is approximately three hours long, which is considerably longer than the usual duration of a televised advertisement. However, Schedule 6 to the Act does not specify the minimum or maximum duration of content to qualify as advertising or sponsorship material.

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

of 7 Error: Reference source not found

Matters raised by the complainant The complainant is of the view that Psychic TV is a category A television program (infotainment or lifestyle program). Given that Psychic TV is considered to be advertising material, the genre conditions do not apply under clause 18A of Schedule 6 to the Act. Consequently, it is not necessary to consider whether or not Psychic TV is a category A television program under subclause 14(1) of Schedule 6 to the Act.

Attachment A

Extract from the Broadcasting Services Act 1992 Schedule 6 – Datacasting Services 2 Definitions

advertising or sponsorship material means advertising or sponsorship material (whether or not of a commercial kind).

[…] 13 Category A television programs

(1) For the purposes of this Division, each of the following television programs is a category A television program:

(a) a drama program;

(c) a sports program;

(d) a music program;

(e) an infotainment or lifestyle program;

(f) a documentary program;

(g) a “reality television” program;

(h) a children’s entertainment program;

(i) a light entertainment or variety program;

(j) a compilation program;

(k) a quiz or games program;

(l) a comedy program;

(m) a program that consists of a combination of any or all of the above programs. [...]

(3) For the purposes of this Division, neither of the following television programs is a category A television program:

(a) an information-only program;

(b) an educational program.