Investigation Report No. 2404
File No. ACMA2010/860
Licensee Central Highlands Broadcasting Inc.
Station 3CH, Kyneton
Type of Service Community radio
Name of Program Broadcast of a Riddell District Football League match
Date of Broadcast 10 April 2010
Relevant Legislation Clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
Investigation conclusion Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [advertising] on: o 10 April 2010 between 1.00 pm and 2.00 pm; and o 10 April 2010 between 2.00 pm and 3.00 pm.
ACMA Investigation Report – 3CH – Compliance with licence condition The complaint On 12 April 2010, the Australian Communications and Media Authority (the ACMA) received a written complaint alleging that Central Highlands Broadcasting Inc., the licensee of 3CH, was not operating in accordance with a condition of its licence. The complainant alleged that 3CH broadcast advertisements by failing to acknowledge the financial support (tagging) of sponsorship announcements broadcast by 3CH during the first two quarters of a live to air football broadcast on Saturday 10 April 2010. Each announcement was in relation to sponsorship of the football ground scoreboard.
The service 3CH has operated in the Kyneton RA1 licence area since 24 April 2000 on a long-term community broadcasting licence and its current licence is due to expire on 1 July 2013. The community interest in respect of which the licence was allocated and last renewed is the general community in the geographic area of Kyneton RA1. Located to the north west of Melbourne, the Kyneton RA1 licence area includes parts of the local government areas of Greater Bendigo, Hepburn, Macedon Ranges, Mitchell and Mount Alexander.
Assessment The assessment is based on written submissions from the complainant and the licensee and a copy of the broadcast provided by the licensee.
Issue: Broadcasting advertisements Relevant provision of the Broadcasting Services Act 1992 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 …
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) For the purposes of this Schedule […] the broadcasting by a community broadcasting licensee of: (a) community information material or community promotional material; or ______ACMA Investigation Report – 3CH – Compliance with licence condition 2 (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 submitted: During a broadcast of the local Riddell District Football League on Saturday 10 April 2010, the station broadcast a number of business name mentions during the first two quarters of the match. These mentions were in relation to sponsorship of the ‘scoreboard’ and were not tagged as sponsorship announcements.
Licensee’s submissions On 30 April 2010, the licensee supplied a copy of a live recording of the first two quarters of the football broadcast on 10 April 2010 and a log of announcements broadcast. 3CH also supplied a list of financial sponsors of the service on 10 April 2010, they are as follows: RSL – Kyneton Sub Branch Macedon Ranges Travel - Woodend Keating’s Real Estate - Woodend Bourkies [Bakehouse] Woodend Macedon Ranges Shire Council Riverwood Group – Woodend Pick Up Stiches – Kyneton Holgates Brewhouse - Woodend Gallery On Piper – Kyneton Emporium – Kyneton Pickup Stiches – Kyneton Kyneton Toyota Elliot Midland Newspapers – Kyneton Woodend Fruit Supply Mollisons – Kyneton Webshield Big Dog Bites Photography – Kyneton Cartridge World – Sunbury
______ACMA Investigation Report – 3CH – Compliance with licence condition 3 Finding The delegate finds that the licensee breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 (the Act) by broadcasting: o Four advertisements on 10 April 2010 between 1.00 pm and 2.00 pm; and o One advertisement on 10 April 2010 between 2.00 pm and 3.00 pm. Details are at Attachment A.
Reasons What is an advertisement? It is a condition of all community broadcasting licences that the licensee must not broadcast advertisements. The condition is in clause 9(1)(b) of Schedule 2 to the Act. The Macquarie Dictionary 4th Edition defines ‘advertisement’ as follows: 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. It follows that any material that promotes goods, services or activities will usually fall within the ordinary meaning of the term advertisement. This does not mean that community broadcasters cannot broadcast some kinds of promotional material. The Act provides that certain promotional material is not taken to be an advertisement. 1 This includes: sponsorship announcements which acknowledge financial support by a sponsor of the licensee or a program broadcast on the community broadcasting service provided under licence; community information material or community promotional material; material that promotes the licensee’s service; and material which is accidental or incidental to the broadcasting of other matter, and for which the licensee does not receive payment or other valuable consideration. This means that a promotional announcement that falls within one of these categories is not considered to be an ‘advertisement’. A community broadcaster may broadcast such an announcement without breaching the prohibition on advertising. Assessment of recordings A review of the relevant broadcasts indicated that, on five occasions, the licensee broadcast promotional material which did not fall within one of the categories listed above. This material is therefore an advertisement. The announcements in question are similar in that they are made as part of a ‘cross’ to the scoreboard to check the score of the football game by the 3CH on-air commentators. In each case, the 3CH commentators make a reference to a business or organisation who is a 3CH sponsor. However the commentators do not acknowledge the financial or in-kind support given by the sponsor to 3CH, that is, the announcements are not tagged. For example, during the first quarter of the match, a 3CH commentator states:
[…] and on this occasion we see a minor score and he gets his first score on the Kyneton Toyota scoreboard that now see Lancefield one point to Riddell one goal […]
1 Clauses 2(1) and 2(2) of Schedule 2 to the Act. ______ACMA Investigation Report – 3CH – Compliance with licence condition 4 The announcements do not fall within one of the categories of material that is not considered an advertisement because they: Do not contain an acknowledgment of financial support by a sponsor; Are not community information or promotional material. The businesses mentioned are commercial for-profit enterprises and not a community organisation; Do not promote the licensee’s services. The segments only promote the business referred to; and Are not accidental or incidental accompaniments to the broadcast of other matter. The promotion of the businesses is a primary subject matter of the announcements for which the licensee receives payments. As the announcements fall within the definition of ‘advertisements’, and they do not fall within any of the exemptions, they are considered to be advertisements. 3CH is therefore in breach of clause 9(1)(b) of Schedule 2 to the Act.
Action taken In its response to the ACMA’s preliminary investigation report, dated 17 June 2010, 3CH stated: o it acknowledged there had been a breach of clause 9(1)(b) of the Act by broadcasting the live to air untagged sponsorship announcements detailed in the ACMA’s preliminary breach report; o further training of presenters had been conducted, particularly in respect of the Sponsorship Guidelines; and o 3CH has now implemented a policy for all future football broadcasts which will only allow the broadcast of pre recorded sponsorship announcements. No live to air sponsorship announcements will be allowed to be broadcast by any 3CH presenter. 3CH has previously been found in breach of clause 9(1)(b) of the Act by the ACMA on 22 October 2009 for broadcasting untagged live to air sponsorship announcements during the broadcast of football games. At that time, 3CH undertook to implement a number of changes to its service with the aim of preventing similar future breaches of the Act. These changes included providing additional training for presenters, updating the presenter training manual and ensuring that the seriousness of the matter was communicated to presenters. However, 3CH has again found to be in breach of Clause 9(1)(b) of the Act. To redress the matter, 3CH has implemented a new policy of no longer broadcasting live to air sponsorship announcements during its football broadcasts. The ACMA considers that this measure addresses the compliance issue raised by this investigation and the past breach. The ACMA will monitor the licensee’s performance in this regard.
______ACMA Investigation Report – 3CH – Compliance with licence condition 5 Decision I, Stephen Atkins, A/g Manager, Community Renewals and Investigations Section, Community Broadcasting Group, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee, Central Highlands Broadcasting Inc. breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 on: o 10 April 2010 between 1.00 pm and 2.00 pm; and o 10 April 2010 between 2.00 pm and 3.00 pm.
Signed: ------Stephen Atkins dated this day of June 2010
______ACMA Investigation Report – 3CH – Compliance with licence condition 6 Attachment A
Announcements Saturday 10 April 2010 1.00 pm to 2.00 pm
On behalf of Type of announcement Duration
Bourkies Bakehouse Tagged sponsorship 00.00.04
Kyneton Toyota Advertisement 00.00.02
Sunbury Carpet Advertisement 00.00.03
Emporium - Kyneton Tagged sponsorship 00.00.04
Keatings Real Estate Tagged sponsorship 00.00.04
Keatings Real Estate Advertisement 00.00.02
Bourkies Bakehouse Tagged sponsorship 00.00.04
Riverwood Group Tagged sponsorship 00.00.03
Pick Up Stiches Tagged sponsorship 00.00.02
Keatings Real Estate Advertisement 00.00.03
Saturday 10 April 2010 2.00 pm to 3.00 pm
Kyneton Toyota Tagged sponsorship 00.00.04
Riverwood Group Tagged sponsorship 00.00.02
Kyneton Toyota Tagged sponsorship 00.00.08
Emporium – Kyneton Advertisement 00.00.02
______ACMA Investigation Report – 3CH – Compliance with licence condition 7