Investigation Report No. 3088

File No. ACMA2013/1245

Licensee Tribe FM Inc.

Station 91.1 Tribe FM (Willunga RA1)

Type of Service Temporary community radio broadcasting service

Name of Program Various unspecified

Dates of Broadcast 23 July 2013 24 July 2013 25 July 2013 26 July 2013

Issue Broadcasting advertisements

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

Date finalised 19 November 2013 Decision Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements]

ACMA Investigation Report – Tribe FM – compliance with licence condition Error: Reference source not found

The complaint On 14 August 2013, the Australian Communications and Media Authority (the ACMA) received a complaint that the licensee of 91.1 Tribe FM, Tribe FM Incorporated (Tribe FM), broadcast an advertisement on six separate occasions on 23, 24, 25 and 26 July 2013.

The service Tribe FM holds a temporary community broadcasting licence (TCBL) to represent the general community interest in the Willunga RA1 licence area in South Australia. Tribe FM’s first TCBL commenced on 2 April 2011 and further TCBLs have subsequently been issued. The current TCBL expires on 2 April 2014.

Assessment The ACMA’s assessment is based on:

 a written complaint to the ACMA received on 14 August 2013; and

 the licensee’s submissions to the ACMA received on 6 September 2013.

Issue: broadcasting advertisements Relevant provisions 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: […] (b) the licensee will not broadcast advertisements ... […]

Part 1 - Interpretation 2 Interpretation – certain things do not amount to broadcasting of advertisements [...] (2) For the purposes of this Schedule (other than paragraph 9(1)(a)), the broadcasting by a community broadcasting licensee of: [...] (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 [...] is not taken to be the broadcasting of an advertisement.

2 Complainant’s submissions The complainant stated that Tribe FM broadcast an advertisement on ‘numerous occasions’ and provided audio copies of six instances of the alleged advertisement at the following dates and times:

 23 July 2013 2:04 pm and 4:20 pm

 24 July 2013 9:14 am and 3:42 pm

 25 July 2013 9:19 am

 26 July 2013 3:42 pm

No detail of the content of the alleged advertisement was provided. However, the complainant stated that the advertisement was previously broadcast on several commercial radio stations.

Licensee’s submissions The licensee submitted to the ACMA:

We have reviewed the logs as the complainant has specified and we agree that we have been negligent at all the times specified, by putting that sponsor announcement to air without the [sponsorship] tag. Our explanation is that our volunteer Sonicart programmer left his position abruptly and we had no one trained to take his place.

We truly wish the complainant had let us know on 23 July that we were breaching the Act so that we could have made the correction sooner.

Finding Tribe FM broadcast an advertisement on six occasions between 23 and 26 July 2013. Accordingly, the licensee breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 (the Act) by broadcasting advertisements on those dates.

Reasons It is a condition of all community broadcasting licences that the licensee must not broadcast advertisements. The condition is contained in clause 9(1)(b) of Schedule 2 to the Act. The Act does not provide a definition for an ‘advertisement’. What is an advertisement? In investigating complaints, the ACMA has 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

The Macquarie Dictionary 4th Edition defines ‘advertisement’ as follows:

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 – Tribe FM – compliance with licence condition 3 Error: Reference source not found

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 any promotional material. The Act provides that certain promotional material is not taken to be an advertisement.2 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.

A review of the recording provided by the complainant showed that at the approximate times indicated and on the days specified, the licensee broadcast a promotional announcement for Red Baron Shiraz from Fox Creek Wines. Tribe FM has also conceded that it broadcast the announcement at the dates and times indicated by the complainant. A transcript of the announcement is at Attachment A.

The announcement is clearly designed to draw attention to a product and is clearly an advertisement. By the Tribe FM’s own admission, the announcement does not contain a sponsorship tag, acknowledging financial support of the licensee. As such, the exemption in the Act for sponsorship announcements does not apply and the announcement is considered an advertisement for the purposes of the Act.

Accordingly, the licensee is taken to have broadcast an advertisement on six occasions between 23 and 26 July 2013 in breach of clause 9(1)(b) of Schedule 2 to the Act.

Action taken In response to the ACMA’s investigation and request for submissions, the licensee advised the ACMA that:

Our explanation is that our volunteer Sonicart programmer left his position abruptly and we had no one trained to take his place. Thanks to Happy FM we have now corrected that situation and two volunteers are now trained in the technology.

In addition we have agreed to amend our programming procedures so that no message goes to air without first being checked for their sponsor tag.

The measures are an adequate response to the breach of clause 9(1)(b) of the Schedule 2 to the Act and no further action will be taken at this time.

2 Clauses 2(1) and 2(2) of Schedule 2 to the Act.

4 Decision

I, Phyllis Fong, Manager, Community Broadcasting Section, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee of 91.1 Tribe FM, Tribe FM Inc., breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements].

Signed: ______Phyllis Fong dated this 19th day of November 2013.

ACMA Investigation Report – Tribe FM – compliance with licence condition 5 Error: Reference source not found

Attachment A Transcript of announcement broadcast by Tribe FM

Allow me to introduce myself, madam. The name’s, Baron. Red Baron.

What, the famous Red Baron?

Yes. The one and only.

The famous, one and only, World War One fighter pilot?

Well... well, I’m not that one and only. I’m the other one and only Red Baron. As in, Red Baron Shiraz.

You’re also a fox.

Thank you very much. Not bad yourself.

No. I mean, you’re actually a fox.

The arrival of Red Baron Shiraz from Fox Creek Wines of McLaren Vale is surprising a lot of people with its smooth, rich, silky character made to be enjoyed right now. A real fox.

What gave me away? Was it the tail?

Well, that and the... cough, cough.

Oh, the ears. I always forget about the ears.

Red Baron from Fox Creek. Now available at all good wine stores.