8TFM - ACMA Investigation Report 2607

Investigation Report No. 2607

File no. ACMA2011/1089

Licensee Charles Darwin University

Station 8TFM Darwin NT

Type of service Community radio

Name of program Sunday NRL with Ray Hadley and the Continuous Call Team

Issue Advertising

Date of broadcast 29 May 2011

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

Investigation conclusion The licensee of 8TFM, Charles Darwin University:  breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [advertisements] on 29 May 2011 during the Sunday NRL with Ray Hadley and the Continuous Call Team program.

ACMA Investigation Report – 8TFM – Compliance with licence conditions

The complaint On 20 June 2011, the Australian Communications and Media Authority (the ACMA) received a complaint that Charles Darwin University, the licensee of 8TFM, broadcast advertisements on 29 May 2011 during the Sunday NRL with Ray Hadley and the Continuous Call Team program.

The program The Continuous Call Team – Live Rugby League is broadcast Saturday, between 12.00 pm and 8.00 pm, and Sunday, between 12.00 pm and 6.00 pm, by Sydney commercial radio service 2GB. In addition to live coverage of National Rugby League (NRL) games, the broadcasts include ‘laughter and insanity’, including competitions.1 2GB’s website states that:

The Continuous Call Team broadcast from Radio 2GB (873AM) in Sydney each and every Friday, Saturday and Sunday (From March 12 2010), as well as stations across Australia. You can also hear the CCT via this web site - just click on the "listen live" button.2

8TFM’s program schedule indicates that the program is broadcast on Sundays, under the name Sunday NRL with Ray Hadley and the Continuous Call Team.3

The service 8TFM has operated in the Darwin RA3 licence area since 5 June 1981 on a long-term community broadcasting licence and its current licence is due to expire on 1 August 2013. The community interest of the licence, as allocated and last renewed, is the general community in the geographic area of Darwin RA3. The licence area comprises the local government areas of Darwin and Jabiru, and certain districts within the local government areas of Coomalie, Litchfield and Unincorporated NT.

Assessment The assessment is based on submissions from the complainant and the licensee, and a copy of the broadcast submitted by 8TFM to the ACMA.

Relevant legislation Relevant provision of the Broadcasting Services Act 1992 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: […]

1 http://www.rugbyleaguelive.com.au/ [accessed 28 July 2011] 2 http://www.rugbyleaguelive.com.au/where-hear-cct [accessed 28 July 2011] 3 http://www.territoryfm.com/program [accessed 28 July 2011]. No time of broadcast is provided – the program schedule states that this information is ‘TBA’.

ACMA Investigation Report – 8TFM – Compliance with licence conditions 2 (b) the licensee will not broadcast advertisements and the licensee will not broadcast sponsorship announcements otherwise than as mentioned in this clause […]

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) 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 On 20 June 2011, the complainant submitted to the ACMA that:

I am writing to inform you about a significant breach of the law regarding advertising on community radio.

The Darwin community station Territory FM rebroadcasts the 2GB Rugby League coverage every Sunday for several hours.

This coverage contains multiple references to 2GB sponsors and advertisers including Tradelink: http://www.tradelink.com.au/, Footy TAB, and Harvey Norman. It is my understanding that community stations are not allowed to broadcast advertising and are limited to strictly regulated sponsorship messages.

On Sunday May 29 I closely monitored Territory FM for a one hour period and made a note of the ads broadcast by the announcers. Those notes are below.

[It’s] important to note that this was just one hour. The actual broadcast goes for 3-5 hours.

ACMA Investigation Report – 8TFM – Compliance with licence conditions 3 Licensee’s submissions In a letter to the ACMA dated 28 June 2011, the licensee submitted:

In approximately 2009 our station was approached by the community sporting association Northern Territory Rugby League who requested our assistance to promote participation and appreciation of Rugby League in the Top End (Darwin area) and in particular to broadcast the national game as there was no coverage of the sport whatsoever on radio. Following negotiation NTRL committed $2500.00 towards a satellite receiver and $2500 (since exhausted) to kick start subscription fees to pay a supplier (game originator) for the coverage.

Further investigation revealed the only commentary team in a position to supply a comprehensive call was Sydney station 2GB under license to NRL.

It was considered that any embedded credits (live commentator sponsor acknowledgments) relevant to 2GB’s Sydney audience [were] beyond our control and could not be edited from the commentary or tagged due to its live nature. To this end we approached other community stations who take 2GB coverage and [were] advised they treated these mentions as accidental or incidental advertising. Regardless, erring on the side of caution we also followed their lead where a generic disclaimer was broadcast before the game and at the half time break.

With no specific ACMA guidelines available relating to sports rebroadcast, Territory FM proceeded in good faith and continues to accommodate what we perceived as a community access request.

It must be stated that Territory FM:  Pays 2GB for the service.  Receives no sponsorship for any NRL broadcast.  Receives no “in kind” benefit for any NRL broadcast.

Territory FM provides the NRL coverage to its general geographic community of interest as a service otherwise unavailable in Darwin.

In response to the ACMA’s preliminary investigation report, the licensee’s legal representative submitted on 23 August 2011 that:

In the case of Director of Public Prosecutions v United Telecasts Sydney Limited, the High Court considered whether the broadcast of matter was an incidental accompaniment to the broadcast of other matter and used the definition of incidental, taken from the Shorter Oxford Dictionary.

Toohey and McHugh JJ stated at paragraph 612 of the same case:

ACMA Investigation Report – 8TFM – Compliance with licence conditions 4 "In the context of s100(10) of the [Broadcasting and Television Act 1942], the word 'accompaniment' seems to refer to matter of an advertising character which occurs 'in company with' the broadcasting or televising of 'other matter'. Hence 'matter of an advertising character will not be an 'accidental' or 'incidental' 'accompaniment' unless it is broadcast or televised contemporaneously with the 'other matter'. In that setting, the adjective 'incidental' must mean 'happening ... in fortuitous or subordinate conjunction' with the 'other matter'.

In that case, their Honours found that it was open to the jury to conclude that the matter of the advertising character dominated the program, and therefore could not be an incidental accompaniment to it.

The facts in this matter are distinguishable from those in the above case. The promotional announcements by commentators in Sunday NRL with Ray Hadley and the Continuous Call Team on 29 May 2011 do not dominate the broadcast of the NRL match and are not the main focus of the program. Rather, they are an unobtrusive and minor feature of the rugby match.

They are not a distinct part of the program, and therefore can be classed as incidental accompaniments to the commentary of the match. All of the Promotional Announcements are wholly subordinate to the rugby commentary and therefore fall squarely within the exception contained in Clause 2(1) of Schedule 2.

Finding The delegate finds that the licensee broadcast advertisements on 29 May 2011 during the Sunday NRL with Ray Hadley and the Continuous Call Team program. Accordingly, the licensee is in breach of clause 9(1)(b) to Schedule 2 of the Broadcasting Services Act 1992 (the Act).

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 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’.4  The plain English definition in the Macquarie Dictionary (Fourth Edition), which defines ‘advertisement’ as follows:

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

ACMA Investigation Report – 8TFM – Compliance with licence conditions 5 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. 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 any promotional material. The Act provides that certain promotional material is not taken to be an advertisement.5 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. Review of the broadcast A review of the program indicates that the broadcast included:  two live read promotional announcements for Continuous Call Team merchandise and Shimano (refer Attachment A for a transcript);  a live call of the NRL match between St George Illawarra and West Tigers; and  a number of promotional announcements, for example:

o during the first half of the broadcast, ‘Coopers’ and ‘Coopers Mild Ale’ were promoted on 14 occasions e.g. ‘Around the ground for Coopers Mild Ale’;

o ‘Tradelink’, a bathroom and plumbing supplies business, was mentioned on 23 occasions e.g. ‘St George Illawarra four, West Tigers nil, that’s on the Tradelink scoreboard’;

o during the half time break, promotional announcements for ‘Mongrel Boots’, ‘Think Water’ and ‘Coates Hire’.

It is clear that the promotional announcements are ‘designed or calculated to draw public attention’ to the goods or services mentioned. However, consideration must be given to whether this promotional material is captured by any of the exemptions in clauses 2(1) and 2(2) of Schedule 2 to the Act. 5 Clauses 2(1) and 2(2) of Schedule 2 to the Act.

ACMA Investigation Report – 8TFM – Compliance with licence conditions 6 The announcements do not promote a station event and, based on the list of sponsor details provided by the licensee, the announcements have not been broadcast on behalf of a station or program sponsor. The licensee has submitted that it had erred on the side of caution by broadcasting the following ‘generic disclaimer’ before the game:

The following program is brought to you by sponsors AquaMAX Hotwater, Lowes, Heartbreak Ridge, Mr Liquor, Clark Equipment, Tyrepower, Claudios, Brydens Law Group, Energy Australia, Holden, McDonalds, Wicken Freight Lines, Bobcat, Tyrepower, Energy Australia, Mr Liquor, Sportingbet, AAMI, Rambuild, Tradelink, Coopers Mild Ale, Chemistworks - totally natural products, Landis Hotel Group and Shimano. and during half time:

Today’s program is brought to you by sponsors, Telstra, Seven, Penrite, Sanity, Hudson, Three Threes, Bendix, Transalloy, News Limited, GCU, Sanyo, Fair Dinkum Sheds, Drug Alert, Five Star Transport, OPSM, Aussie Home Loans, Akubra Hats, Clubs New South Wales, Coles Supermarkets, Chemistworks and Flower Power.

The ACMA’s Community Broadcasting Sponsorship Guidelines 2008 (the Sponsorship Guidelines) state that:

A sponsor is an individual or organisation who provides payment in cash or in kind to a community broadcasting licensee or a program under the service. This could be by way of a cash donation or a contribution of goods or services that would otherwise be an expense for the licensee in operating the service. The key feature of a sponsorship announcement is its acknowledgement of the financial or in-kind support given by a sponsor to a community broadcasting licensee or a program provided under the service. [page 13] […] Licensees broadcasting programming syndicated from commercial stations should ensure that the advertisements in them are removed to overcome the potential for a breach of the ban on advertising. Simply adding a tag to an advertisement in retransmitted or syndicated programming where there is no relationship between the licensee broadcasting the announcement and the sponsor does not ensure compliance. [page 17]

It would appear that 8TFM has referred to businesses as ‘sponsors’ when in fact no financial (or in-kind) relationship exists between the businesses and 8TFM. Accordingly, the announcements for these businesses are not sponsorship announcements for the purposes of clause 9(1)(b) of Schedule 2 to the Act as there was no financial relationship between these businesses and the licensee or program provided under the licence. In relation to community information material and community promotional material, the Sponsorship Guidelines state that:

Any broadcast that provides information about community events or promotes community services (that is, community service announcements or CSAs) may fall into this category. Usually, licensees receive no payment for the broadcast of this type of material and therefore they do not need to be tagged. [page 9]

ACMA Investigation Report – 8TFM – Compliance with licence conditions 7 The following are provided as examples of community information material or community promotional material:

 Material about an appeal by a registered charity, or a non-profit or volunteer group; for example, the Red Cross Blood Appeal, Salvation Army Door Knock Appeal;

 announcements that can be seen to meet the needs of the community served by the licensee. For example, a licensee with an ethnic community interest may inform listeners belonging to that particular ethnic group about an upcoming cultural festival or provide information about other events of a cultural, welfare or educational nature;

 genuine community information material, such as local sporting events, community theatre or weather warnings; and

 announcements about goods or services, where the money raised benefits the community, a non-profit group or a community organisation. For example, a school fete or an announcement promoting a radiothon where the money raised goes to help the victims of a tsunami. [page 9] Further, the Sponsorship Guidelines state that:

It is important to note that announcements about goods or services that charge commercial rates or are sold by an entity with a profit-making purpose are less likely to be community information or community promotional material. [page 12] On the basis of the information before the delegate, the promotional announcements identified in the complaint do not provide community information material or community promotional material. The licensee has submitted that 8TFM was approached ‘to promote participation and appreciation of Rugby League in the Top End’, particularly as there was no other coverage of the sport available on radio. It is accepted that other radio services in the licence area do not provide coverage of the NRL and that 8TFM were acting in response to an identified need within the community. While there may have been interest within the community for coverage of the NRL, this does not mean that the coverage and the promotional announcements identified in the complaint are community information material or community promotional material. The licensee has submitted that the announcements have been treated as ‘accidental or incidental advertising’. The Sponsorship Guidelines state that:

The Act permits community licensees to broadcast material that has an advertising character in circumstances where it:  can be regarded as an ‘accidental or incidental accompaniment’ to a broadcast of other matter; and

 is not paid for, either in cash or in the form of any other kind of valuable consideration. [page 5] There is no information before the delegate to indicate that 8TFM received cash or in-kind payment for the broadcast of the promotional announcements. In considering the first limb, it is noted that the Sponsorship Guidelines state that:

There is no definition of the term ‘accidental’ in the Act. In the past, ACMA has used the ordinary meaning of the word.

ACMA Investigation Report – 8TFM – Compliance with licence conditions 8 The Macquarie Dictionary (Fourth Edition) defines ‘accidental’ as: accidental: adjective happening by chance or accident, or unexpectedly. Advertising material 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.

If the broadcast of the advertising material is deliberate, or due to some arrangement or understanding, it would not be ‘accidental’. [page 5]

In relation to 8TFM’s broadcast of the Sunday NRL with Ray Hadley and the Continuous Call Team program on 29 May 2011, the licensee has acknowledged that it was both aware of the advertisements and that ‘[…] erring on the side of caution […] a generic disclaimer was broadcast before the game and at the half time break.’ As such, it would appear that the broadcast of the promotional announcements was deliberate and due to some arrangement or understanding. Accordingly, the broadcast of these announcements by 8TFM cannot be seen to be ‘accidental’. The Sponsorship Guidelines state that:

There is no definition of the term ‘incidental’ in the Act. In the past, 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. Advertising material 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. [page 7]

In relation to 8TFM’s broadcast of the Sunday NRL with Ray Hadley and the Continuous Call Team program on 29 May 2011, the number and frequency of promotional announcements do not make them a minor part of the program. In this regard, the broadcast promotes over 30 companies or businesses and that the references to these companies or businesses occurred on more than one occasion , e.g. ‘Coopers’ or ‘Coopers Mild Ale’ was promoted on 14 occasions during the first half of the broadcast and ‘Tradelink’ was mentioned on 23 occasions. In this respect, the promotional announcements are not considered to be unobtrusive nor a minor feature of the program. Additionally, it is noted that at half time, four announcements were broadcast:  a 30-second promotion for ‘Mongrel Boots’;  8TFM’s ‘generic disclaimer’ stating that:

Today’s program is brought to you by sponsors, Telstra, Seven, Penrite, Sanity, Hudson, Three Threes, Bendix, Transalloy, News Limited, GCU, Sanyo, Fair Dinkum Sheds, Drug Alert, Five

ACMA Investigation Report – 8TFM – Compliance with licence conditions 9 Star Transport, OPSM, Aussie Home Loans, Akubra Hats, Clubs New South Wales, Coles Supermarkets, Chemistworks and Flower Power.;  a 30-second promotion for ‘Think Water’; and  a 30-second promotion for ‘Coates Hire’.

These announcements are distinct from the coverage of the game, as there is no link to the game and the content of these promotional announcements. Each of the promotional announcements broadcast on 29 May 2011 are deliberate and the references to the goods and services cannot be seen to be a ‘casual reference’. The goods and services promoted are not related to the live call of the NRL match and do not occur in the context of the discussion of the game, that is, the references to the goods and services do not occur in conjunction with the discussion of the football. When promotion of a product, item or service can be interpreted as an aim of an announcement in itself, the broadcast of that promotion will not be ‘incidental’ to the broadcast of some other matter – it will be a substantive matter in itself. Accordingly, the advertisements were not an accidental or incidental accompaniment to the broadcast of ‘other matter’, and subsections 2(1)(a) and (b) to Schedule 2 of the Act do not apply. In relation to the licensee’s submission that the promotional announcements can be classed as ‘incidental accompaniment’ as they are not the main focus of the program, the following is noted:

In the Rothmans Case, the Court stated this [compliance] will not only be a question of whether the advertisement occupies a small part of the time involved in a particular broadcast, otherwise any television commercial of short duration would be incidental.6

In relation to the licensee’s submission that there are no guidelines to sports rebroadcasts, it is noted that the Sponsorship Guidelines provide the following warning: Broadcasting programming syndicated from commercial stations also means a licensee runs the risk of breaching the licence condition not to broadcast advertisements.

Some broadcasters mistakenly believe that if they do not receive any payment for advertisements that appear in a syndicated commercial feed, they are not in breach of the licence condition ban on advertisements. However, any advertisement broadcast, paid or unpaid, could potentially breach the licence condition. [page 17]

Action taken In response to the ACMA’s preliminary investigation report, the licensee submitted that:

6 Rothmans of Pall Mall (Australia) Ltd v ABT 58 ALR 675 Note 3 at [29]

ACMA Investigation Report – 8TFM – Compliance with licence conditions 10 After receiving the [Preliminary Investigation] Report from the ACMA on 9 August 2011, 8TFM immediately removed the NRL broadcast from the programme schedule, and Sunday NRL with Ray Hadley and the Continuous Call Team pending the outcome of the investigation.

If the preliminary view remains unchanged after the ACMA has finalised its investigation, 8TFM will not resume the NRL broadcast or carry on its subscription with 2GB in Sydney.

8TFM understands the seriousness of a breach of a licence condition under the Act, and are wholly committed to complying with all of its licence conditions. In the future, 8TFM will take steps to ensure that broadcasts from commercial stations are reviewed prior to broadcasting, so that any prohibited advertising may be identified and removed, or the program not broadcast at all.

The ACMA considers that the licensee has taken adequate steps to address the compliance issues raised by the investigation and will continue to monitor 8TFM’s performance in this regard.

Decision I, Desa Bajic, 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 of 8TFM, Charles Darwin University:  breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [advertisements] on 29 May 2011 during the Sunday NRL with Ray Hadley and the Continuous Call Team program.

ACMA Investigation Report – 8TFM – Compliance with licence conditions 11 Signed: ______Desa Bajic

dated this 2nd day of September 2011

ACMA Investigation Report – 8TFM – Compliance with licence conditions 12 Attachment A Transcripts of promotional announcements

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ACMA Investigation Report – 8TFM – Compliance with licence conditions 13