4BCR - ACMA Investigation Report 2670

Investigation Report No. 2670

File No. ACMA2011/1487

Licensee Bundy FM Community Radio Association Inc

Callsign / On-air ID 4BCR / Coral Coast Radio 94.7FM

Type of Service Community broadcasting

Date/s of Broadcast Announcements broadcast on 29 July and 3 August 2011

Relevant  Codes 1.4, 1.5 and 1.6 [policies relating to financial members, Legislation/Code internal conflict resolution and complaints handling, respectively]; Code 2.4 [all policy documents to be freely available]; Codes 7.3 (b), (c) and (d) [complaints handling] of the Community Radio Broadcasting Codes of Practice 2008  Clauses 9(1)(b) [prohibition on the broadcast of advertisements] and 9(2)(c) [encourage community participation] of Schedule 2 to the Broadcasting Services Act 1992 Date Finalised 10 January 2012 Decision Codes: No breach of Code 7.3 (b) Breach of Codes 1.4, 1.5, 1.6, 2.4, 7.3 (c) and (d)  Licence conditions: o No breach of clause 9(2)(c) o Breach of clause 9(1)(b)

ACMA Investigation Report – 4BCR compliance with licence conditions and Codes of practice Error: Reference source not found

The complaint On 22 August 2011, the Australian Communications and Media Authority (the ACMA) received a complaint alleging that the licensee of 4BCR, Bundy FM Community Radio Association Inc (the licensee), failed to comply with licence conditions under the Broadcasting Services Act 1992 (the Act) and provisions of the Community Radio Broadcasting Codes of Practice 2008 (the Codes).

The complaint has been investigated in accordance with:

 Codes 1.4, 1.5 and 1.6 [policies relating to financial members, internal conflict resolution and complaints handling, respectively]; Code 2.4 [all policy documents to be freely available]; Codes 7.3 (b), (c) and (d) [complaints handling] of the Codes; and

 Clauses 9(1)(b) [prohibition on the broadcast of advertisements] and 9(2)(c) [encourage community participation] of Schedule 2 to the Act.

The licensee Community broadcasting licence no. 1150216 was allocated to the licensee to represent the general community interest in the Bundaberg RA1 licence area in Queensland. The licence was renewed for five-year periods from 2002-2007 and 2008-2013.

Assessment The assessment is based on written submissions from the complainant received on 22 August 2011 and the licensee received on 27 September, 14 December and 21 December 2011, and a copy of the announcements broadcast on 29 July and 3 August 2011 provided by the licensee to the ACMA.

Issue 1: Does the licensee have policies relating to financial members, internal conflict resolution and complaints handling?

Relevant Codes provisions

1.4 We will have written policy documents in place that outline:

(a) the principles of financial membership,

(b) the rights and responsibilities of financial members within the organisation, and

(c) the rights and responsibilities of the organisation to financial members. A register of financial members will also be kept and made available to ACMA on request.

1.5 We will have written policies and procedures in place to effectively deal with internal conflict.

1.6 We will have policies and procedures in place to handle complaints from our members and volunteers.

2 Complainant’s submissions In his complaint to the ACMA, the complainant stated that the licensee had ignored his requests for copies of policies relating to members, administrative matters and dismissals and appeals. He stated:

The station used to have a booklet, which set out presenters guidelines and responsibilities under the statutory provisions of the Broadcasting Services Act, its Code of Conduct, copyright and station rules. My request for a copy of this document was ignored.

Licensee’s submissions In response to the ACMA’s response for comments, the licensee stated:

[...] before we outline our responses to the questions you ask of us, I wish to briefly outline some facts to bring to light the situation we have with the complainant.

[...] [the complainant] has held managerial roles as secretary, studio administrator, station administrator, station manager, treasurer and committee member for the period 2000 to 2009.

[...] [The complainant] was voted out of management at the 2009 AGM [...]. No documents were passed over to the new management. The documents that were not passed on were financial records, minutes of meetings and general administration documents. When asked for these documents, our requests were ignored.

This [...] has made it difficult to prove that certain documents exist or whether documents that we have found have been passed at meetings. In trying to answer your questions, we had to call a meeting of members, especially longer serving members, to ‘pick their brains’ on whether certain policies existed.

This is in no way trying to elude the questions you have put to us, but simply outlining the difficulty that this current management has had in answering your questions truthfully to the best of our knowledge.

We will outline in our answers documents that we know exist and ones which obviously don’t, and as we don’t have access to minutes of meetings for the last nine years, the members and management have made a resolution to adopt a new version of all documents that are required by us to fulfil our obligations and adopt them at our AGM in November this year.

The licensee further stated:

The only document that management could find in relation to code 1.4 was ‘the green book’ labelled APP1. Members were of the opinion that this book covered code 1.4. It was adopted at one of the very first meetings of the association in 2001. As no records of meetings are available to us, we cannot confirm this. [...]

Management found a document on the station computer titled ‘Internal Complaints Process’. When at our special meeting, members were asked if anyone could remember this document being passed. No one could recollect whether it had been passed and since there has never been an instance at the station to warrant conflict resolution, the passing or use of this document could not be confirmed. [...] Being faced with uncertainty of whether the document has been passed or not, document ‘4BCR 1.5’ will be approved and adopted at our AGM as the station’s internal conflict policy. [...]

ACMA Investigation Report – 4BCR compliance with licence conditions and Codes of practice 3 Error: Reference source not found

Management did not recognise [the complainant’s] letter as a complaint against the station in relation to the breach of the codes. Management interpreted his letter as a request for administrative documents. The second part of [the complainant’s] letter referred to his opinions on how the station should be run and did not represent a complaint as such.

The documents that [the complainant] was referring to ie ‘the green book’ – he would have had a copy of this document. Nevertheless, he was sent a copy of ‘the green book’ on 8 July 2011 [...]. A copy of this book is included and labelled APP1.

Finding The licensee breached Codes 1.4, 1.5 and 1.6 [policies relating to financial membership, internal conflict resolution and complaints handling, respectively].

Reasons In relation to Code 1.4 [policy relating to financial members], the complainant stated that he had requested a copy from the licensee but his request was ignored. However, the licensee has stated that the complainant was provided a copy of the policy relating to financial members, that is, ‘the green book’, on 8 July 2011. While the licensee provided a copy of ‘the green book’ to the ACMA and states that it provided a copy to the complainant, the fact remains that ‘the green book’ did not constitute the licensee’s policy relating to financial members as the licensee could not confirm that it had been adopted.

In relation to Code 1.5 [policy relating to internal conflict resolution], the licensee has located a document relating to internal conflict resolution. However, the licensee is unable to confirm whether it has been adopted as a policy, as it no longer has copies of minutes of meetings. Nonetheless, the licensee has undertaken to rectify this by ensuring that the document is adopted at its 2011 annual general meeting.

In relation to Code 1.6 [policy relating to complaints handling], the licensee has submitted that it did not recognise the complainant’s letter as a complaint made under the Codes. However, it had provided the complainant with a copy of ‘the green book’. There is no evidence to suggest that the licensee has a complaints handling policy, as required by Code 1.6.

In response to the ACMA’s preliminary breach findings, the licensee advised on 14 December 2011 that it adopted the following policies at its annual general meeting held on 10 December 2011:

 ‘the green book’;

 internal conflict resolution; and

 complaints handling.

Issue 2: Does the licensee make all policy documents freely available?

Relevant Codes provision

2.4 All policy documents will be freely available.

4 Complainant’s submissions In his complaint to the ACMA, the complainant stated that the licensee had ignored his requests for copies of policies relating to members, administrative matters and dismissals and appeals. As such, the licensee did not make all policy documents freely available to him.

Licensee’s submissions In response to the ACMA’s request for comments, the licensee stated:

The documents that [the complainant] was referring to ie ‘the green book’ – he would have had a copy of this document. Nevertheless, he was sent a copy of ‘the green book’ on 8 July 2011 [...]. A copy of this book is included and labelled APP1.

A copy of ‘the green book’ APP1 and a copy of the station’s constitution are always available for perusal at the station’s office at any time during office hours. All new documents that are adopted from the outcome of this investigation will also be on display at the said premises for anyone to peruse them. We are also looking at making all aforementioned documents available on our website.

Finding The licensee breached Code 2.4 [all policy documents to be freely available].

Reasons As the licensee did not have copies of all policy documents, it stands to reason that the licensee was unable to make copies of all policy documents freely available. However, what the licensee did have, for example, ‘the green book’, was freely available at the station during office hours. Further, it is noted the licensee intends to make all policy documents available on its website.

In response to the ACMA’s preliminary breach finding, the licensee advised on 14 December 2011 that copies of all policy documents are now freely available at the station.

Issue 3: Did the licensee comply with the Codes in considering the complaint made by the complainant?

Relevant Codes provisions

7.3 We will ensure that:

(b) complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible,

(c) complaints will be responded to in writing within 60 days of receipt, as required by the Act, and the response will include a copy of the Codes, and

(d) complainants are advised in writing that they have the right to refer their complaint about a Code matter to ACMA provided they have first:

(i) formally lodged their complaint with the licensee in writing, and

(ii) received a substantive response from the licensee and are dissatisfied with this response, or have not received a response from the licensee within 60 days after making the complaint.

Complainant’s submissions In his complaint to the ACMA, the complainant stated that the licensee had ignored requests made in his letter of 23 June 2011 for copies of policies relating to members, administrative matters and dismissals and appeals.

As we have stated, we did not interpret [the complainant’s] letter as a complaint about the code nor a complaint. We interpreted it as a request for documents [...]. Management realises now that this was an error on our part and this is why we sent him a copy of the only document we had, which was ‘the green book’, APP1. [...]

We did not advise [the complainant] to contact the ACMA as we felt his letter was not a complaint about the codes. To rectify this situation, all management now has a copy of the code of practice booklet and also one is on display for all members to read at the station and we are going to provide a link on our website to anyone to download a copy.

Finding The licensee breached Codes 7.3 (c) and (d), but did not breach Code 7.3 (b).

Reasons In relation to Code 7.3 (b), the complainant’s letter to the licensee is dated 23 June 2011 and the licensee’s response is dated 28 June 2011. While the licensee stated that it did not consider the complainant’s letter to be a complaint, the complainant’s letter includes a statement that ‘These complaints have been formalised in a letter instead of being raised at a monthly meeting [...]’. Nonetheless, the licensee did consider the complainant’s letter conscientiously and responded to it substantively as soon as possible.

In relation to Code 7.3 (c), the licensee responded in writing within 60 days of receiving the complainant’s letter of complaint. However, the licensee did not include a copy of the Codes with its response to the complainant.

In relation to Code 7.3 (d), the licensee’s response did not advise the complainant of his right to refer his complaint about Codes matters to the ACMA if he was dissatisfied with the licensee’s response.

In response to the ACMA’s preliminary breach findings, the licensee advised on 14 December 2011 that it adopted a document detailing its complaints handling procedure at its annual general meeting held on 10 December 2011. In addition, the licensee stated that a copy of the Codes is now freely available at the station and will soon be accessible on its website.

6 Issue 4: Did the licensee broadcast advertisements?

Relevant licence condition

Clause 9 of Schedule 2 to the Act (1) Each community broadcasting licence is subject to the following conditions: [...]

(b) the licensee will not broadcast advertisements, and the licensee will not broadcast sponsorship announcements otherwise than as mentioned in this clause;

Clause 2 of Schedule 2 to the Act

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 (other than paragraph 9(1)(a)), 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 a 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 a 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 service or services provided under the licence;

is not taken to be the broadcasting of an advertisement.

Complainant’s submissions In his complaint to the ACMA, the complainant stated that the licensee had broadcast announcements that did not have sponsorship tags and provided a list of announcements which he believed had ‘questionable tags’.

[...] after listening, we realise that one of the sponsorships did not include a tag acknowledging sponsorship of the station. This is the first time this has ever happened, to our knowledge. The particular advertisement, ‘freshest spring water’, was revoiced on 21 July 2011 and, in the rush to get it back on air, the tag was omitted. This was an oversight. To rectify that this never happens again, we now have a checklist for our production team that includes checking that all sponsorship have tags. Sponsorships cannot go to air until the checklist has been completed and signed off by the production manager. The sponsor, ‘freshest spring water’, is no longer a sponsor at our station and the sponsorship no longer runs.

Finding The licensee breached clause 9(1)(b) of Schedule 2 to the Act as it broadcast advertisements about ‘freshest spring water’.

Reasons The ACMA reviewed the audio files of broadcasts which contained announcements identified by the complainant as having ‘questionable tags’. The ACMA found that all the announcements were appropriately tagged, with the exception of two announcements for ‘freshest spring water’. This is considered below.

‘freshest spring water’ announcements As the licensee has acknowledged, it broadcast an advertisement for ‘freshest spring water’ at approximately 10.20 am on 29 July 2011, as the announcement was not tagged. In reviewing the audio files provided by the licensee, the same advertisement was broadcast at approximately 9.20 am on 3 August 2011. In this regard, the question is whether one or more of the exceptions is applicable to the announcements, such that they do not amount to the broadcast of an advertisement.

The broadcast of the announcements was neither an accidental nor incidental accompaniment to the broadcast of other matter and the licensee received payment or other valuable consideration for broadcasting the advertising matter.

The announcements were also neither community information material nor community promotional material and they did not acknowledge financial support by a person of the licensee or of a program broadcast on a service provided under the licence.

Further, the announcements did not constitute material that announces or promotes a service provided under the licence, including material that is likely to induce public support, whether financially or otherwise, or to make use of, the service or services provided under the licence.

As none of the exceptions apply to the announcements, the licensee is taken to have broadcast advertisements for ‘freshest spring water’ on 29 July and 3 August 2011.

In response to the ACMA’s preliminary breach finding, the licensee advised on 14 December 2011 that:

 it accepted that these announcements were not tagged due to an oversight;

 ‘freshest spring water’ was no longer a sponsor by the time it became aware of the complaint; and

8  to ensure future compliance, it has created a checklist for its production team which includes checking that all sponsorship announcements are tagged.

Issue 5: Is the licensee encouraging community participation?

Relevant licence condition

Clause 9 of Schedule 2 to the Act (2) Each community broadcasting licence is also subject to the following conditions:

(c) the licensee will encourage members of the community that it serves to participate in:

(i) the operations of the licensee in providing the service or services; and

(ii) the selection and provision of programs under the licence;

Complainant’s submissions In his complaint to the ACMA, the complainant stated that the licensee was not encouraging participation in management and programming. His statements included:

[...] There are no formal sub-committees or effective delegation of responsibilities. [...] Many decisions affecting members (especially long-term members) have been taken by the President acting without his committee eg removing long-term presenters from programs, overriding fill-in coordinators’ decisions. [...] The new requirement for members applying for membership of the Association to be interviewed by the committee before acceptance is contrary to the principles of community associations and community radio.

Licensee’s submissions In response to the ACMA’s request for comments, the licensee provided a copy of its constitution and the following information:

We have a recorded promo, which is run once every three hours after the news to encourage people from the community to become a member. It advises them where they can get an application form and it encourages them to become involved. [The licensee provided a copy of the recording.] [...] Also on this CD is a copy of the code of practice promo, which runs twice a day.

We also have feedback forms on our website; we have a facebook page which encourages participation and ideas for shows. We also do outside broadcasts / promos at least once a month at fetes and community events and just uptown where we hand out flyers, application for membership forms, stickers etc. We also talk to members of the public at these events and canvass for new members.

[...] We also held a public forum on 19 July 2011 and invited members of the public to become involved. [The licensee provided a copy of the invitation which indicates that the forum was held on 19 July 2009. The licensee has confirmed the forum was held in 2009, not 2011.] [...] It lists all the areas where people could have their say on the running of the station. We advertised this event on our own station as well as other radio stations, TV and news print media, our website and facebook page. We also sent invitations to other non-profit community

groups, encouraging their members to attend. We had approximately 175 people turn up to the day and it was a huge success and really enabled the community to have their say on how the station should go into the future. As it was such a success, we are looking at having one of these forums every 2-3 years to keep the community involved.

We have 2 sub-committees: one is the ethnic presenters group and the other is the genre (program) groups. [...]

In forming the genre groups, we first took the station’s program as it was and noted how many genres were being broadcast on 4BCR. We came up with approximately 9 different genre groups. These include the following groups:

1. Breakfast / drive-time (70s, 80s, 90s, 2000s)

2. Easy listening

3. Country

4. Classical

5. Rockabilly / blues

6. Youth

7. Christian

8. Ethnic

9. Community access.

Now all current presenters were asked to join a group which corresponds with their particular music that they are currently presenting. Once this was done, each group elected its own representative, who is in charge of recruiting new members to their genre group and also arranging fill-ins for their group when there are absences. Management meets with genre group representatives once every three months to make sure that everything is on track. Every three months, each group is allocated slots in the program according to a number of factors – presenters in their group, popularity of shows within the community, feedback received from the public and members and also on recommendation of other genre group leaders. This whole process works excellently and therefore gives the community more input in programming at the station and programming cannot be influenced by a minority.

115 financial members: 90 of these are individuals, 25 are other community groups.

50-60 of these members are involved either as presenters or in production, management or as volunteer office staff.

Membership policy is as per our constitution. We also have made it a requirement that all new prospective members come and meet the management committee. This is in no way a screening process, but a way of actually meeting the person / group who is applying for membership. By our constitution, management has to pass applicants to be members and we feel that if we don’t know or have not met the applicant, how can we honestly vote?

[...] [The licensee provided a copy of its membership application form.] If this is in breach, we will adopt a new membership form, but we feel our form is justified.

10 We send out notices for the AGM. Included in the AGM letter are the rules on how to nominate for management as per our constitution [...]. We have included the generic forms which are sent out [...]. [The licensee provided a copy of its nomination form.]

[...] Members received notice of the AGM 3 weeks before the AGM date. The AGM date was also broadcast 3 weeks before the AGM. This notice gave members 1 week to get nominations to the secretary for acceptance. Our constitution states that we only need to give 2 weeks’ notice for both an AGM and nomination, so we gave our members an extra week.

[...] From our answers, you can see that no one person has control of the decision-making process at 4BCR. We hold management meetings once a month and all decisions are discussed and voted and only passed by a majority. We also hold monthly members meetings, where all members are able to put forward ideas and thoughts on station matters and have their say on the running of the station.

Finding The licensee did not breach clause 9(2)(c) of Schedule 2 to the Act.

Reasons

Encourage community participation in the operations of the service In determining whether a licensee is encouraging community participation in the operations of a service, consideration is given to that licensee’s organisation structure and decision-making processes, as well as whether a licensee’s constitution contains provisions that may present potential barriers to participation. Activities undertaken by a licensee to encourage community participation are also considered, regardless of whether those activities result in increasing that licensee’s member and volunteer numbers.

4BCR’s constitution appears to be appropriate for a community broadcasting service, including rules relating to membership, appeal against rejection or termination of membership, election of the management committee and appointment of sub-committees, functions and meetings of the management committee, AGMs and business to be conducted at those meetings, and notice of and voting at AGMs.

4BCR’s organisation structure comprises a management committee and ethnic and genre groups. There are no statutory requirements of a licensee to have sub-committees. If ethnic and genre groups are appropriate for the efficient and effective operation of the 4BCR service, these would be an adequate substitute. It is noted that there is a process for becoming a member of the genre group and procedures for decision-making.

While the complainant is dissatisfied with the licensee’s requirement of applicants for membership to appear before the committee before it makes a decision on an application, there is nothing in the licensee’s constitution that would preclude it from doing this. It is clear that there are appropriate rules for membership in the licensee’s constitution and the licensee may choose to meet prospective members if it so wishes to assist it in its decision-making.

The constitution provides that the management committee consists of a president, treasurer and any other members the association members elect at a general meeting1. The role and

1 Rule 18(1).

ACMA Investigation Report – 4BCR compliance with licence conditions and Codes of practice 11 Error: Reference source not found responsibilities of the management committee are apparent in the constitution. All members retire from the management committee at the AGM and are eligible to be nominated for re-election.

There are no paid staff positions, however, there is no statutory requirement to have paid staff. In the case of 4BCR, all positions, including station manager, are filled by volunteers.

4BCR undertakes a healthy range of activities to encourage community participation. These include broadcasting an announcement every three hours to encourage participation, having a website that contains relevant information such as feedback forms and a Facebook page, holding outside broadcasts and promotions at least once a month at fetes and community events, and handing out flyers and membership application forms wherever possible.

However, 4BCR only has 115 financial members and 61 volunteers2 in a licence area that had a total population of 73,773 persons in the 2006 Census. These figures could be improved, as they do not compare well with the national averages for a regional community radio broadcasting service of 243 financial members and 49 volunteers, respectively.3

Encourage community participation in the selection and provision of programs Of the total population of 73,773 persons in the licence area, approximately 92% speak English only at home, with 83% citing Australia as their country of birth. Close to 70% of the total licence area population subscribe to a Christian denomination. Of the total licence area population, 21% are aged between 15 and 34 years, 27% aged between 35 and 54 years and 23% aged between 55 and 74 years.4

The manner in which 4BCR has established the ethnic and genre groups appears to be appropriate for its purposes to enable community participation in the selection and provision of programs. The complainant states that 4BCR’s President has made decisions, for example, removing long-term presenters from programs and overriding decisions of fill-in coordinators. From the information provided to the ACMA, there is no evidence that this has occurred. It appears, for example, that the ethnic and genre groups are allocated timeslots every three months, with each group determining the specific programs within the given timeslots and arranging fill-in coordinators as required. This indicates that there is community participation in the selection of programs.

When accessed on 17 November 2011 (www.coralcoastradio.net.au), 4BCR’s website stated:

Programming diversity reflects community interest in alternative, blues, country, easy listening, ethnic (Filipino, Hungarian, Irish, Dutch, Afrikaans, Scottish), jazz, modern, past hits, techno, world and others. Presenters also reflect the diversity in the community - from teens to retirees, and interests in-between. We are live-to-air locally 18 hours each day from 6.00 am to midnight - and then the best hits from the 50s to the 2000s till 6.00 am.

4BCR’s latest program schedule, as at 14 July 2011 on its website, shows that it broadcasts 168 hours a week, with 53 hours (31%) of computer-generated music (‘overnight station mix’), 51 hours (30%) of music programming, 26 hours (16%) of talk programming, 25 hours (15%) of breakfast/drive-time programming (when 70s to 2000s and 80s to 2000s music is played, respectively), and13 hours (8%) of ethnic programming (all the ethnicities as shown on the 4BCR

2 Information provided in the licensee’s 2008 licence renewal application. 3 CBOnline Survey of the Community Radio Sector: 2007-08 4 2006 Census

12 website plus Italian). There appears to be a range of programming that reflects the general community interest in the licence area.

While 19 presenters are shown on 4BCR’s website, the program schedule shows that there are 45 presenters (Angela, Ben, Bev, Bill, Brian, Burt, Carol, Dave, Deadly, Denis, Diana, DJ D, Dympna, Eva, Fran, Gavin, George, Grace, Graz, Greg, Helen, James, Jan, John, Josh, Karen, Keith, Ken, Kyles, Les, Maria, Mike, Mix Man, Monica, Pat, Peter, Richard, Rick, Rob, Robbie, Rochelle, Simone, Spud, Valerie, Wayne). This indicates that there is community participation in the provision of programs.

ACMA Investigation Report – 4BCR compliance with licence conditions and Codes of practice 13