Final Investigation Report - 3WBC - VFL Finals

Investigation Report No. BI-92

Summary

File no. BI-92

Licensee Whitehorse Boroondara FM Community Radio Inc

Station 3WBC

Type of service Community radio

Name of program 3WBC Football

Date of broadcast 19 September 2015

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

Decision Breach of paragraph 9(1)(b) of Schedule 2 [broadcast of advertisements]

No breach of paragraph 9(1)(b) of Schedule 2 [broadcast of advertisements]

Date Finalised 29 February 2016 Opening On 23 September 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 149 of the Broadcasting Services Act 1992 (the BSA) into Whitehorse Boroondara FM Community Radio Inc’s (3WBC) compliance with the licence condition at paragraph 9(1)(b) of Schedule 2 to the BSA.

The investigation was commenced after the ACMA received a complaint alleging that 3WBC’s Victorian Football League (VFL) Finals commentary, broadcast on 19 September 2015, included advertisements for Aussie Home Loans Blackburn, Peter Jackson and Legendairy (sic).

The Broadcast 3WBC Football was broadcast on Saturday 19 September from 11.00am until 5.30pm. The broadcast included live commentary of the AFL Victoria Development League Grand Final and the VFL Preliminary Final.

Assessment This assessment is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources are identified where relevant.

When assessing content against the BSA, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.

Australian courts have considered an ‘ordinary reasonable’ listener or viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.1

Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the relevant regulation, in this case, clause 9(1)(b) of Schedule 2 to the BSA.

Relevant provisions of the Broadcasting Services Act 1992 The ACMA has investigated the broadcast material against the following provisions of Schedule 2 to the BSA:

Schedule 2 - Standard conditions 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:

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. (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: (b.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 (b.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.

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 […] […]

Finding The licensee breached paragraph 9(1)(b) of Schedule 2 to the BSA when it broadcast the statement ‘Aussie Home Loans Blackburn Scoreboard’.

The licensee did not breach paragraph 9(1)(b) of Schedule 2 to the BSA when it broadcast references to VFL sponsors Peter Jackson and Legendairy.

Reasons Under paragraph 9(1)(b) of Schedule 2 to the BSA, community broadcasting licensees are prohibited from broadcasting advertisements. The BSA does not provide a definition for an ‘advertisement’. However, the ACMA’s Community Broadcasting Sponsorship Guidelines 2008 (the Guidelines) includes the following information:2

In investigating complaints, 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 an 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 plain English definition in the Macquarie Dictionary (Fourth Edition), which defines ‘advertisement’ as follows:

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.

Paragraphs 2(1) and 2(2) of Schedule 2 to the BSA provide a number of exemptions to the general prohibition on advertising on community broadcasting services.

Although a broadcast may contain material that has characteristics of an advertisement – that is, material that ‘promotes products or services’ – the Schedule 2 exemptions may apply such that the material is not considered to be advertising for the purposes of the prohibition under paragraph 9(1)(b).

In determining whether 3WBC contravened the licence condition prohibiting the broadcast of advertisements, the ACMA must consider:

• whether the material broadcast was of an advertising character; and, if so

• whether any of the exemptions under paragraph 2 apply.

1. Aussie Home Loans Blackburn

Throughout the broadcast, when mentioning the match score, the commentators referred to the ‘Aussie Home Loans Blackburn Scoreboard’.

These announcements promoted Aussie Home Loans Blackburn and therefore were of an advertising character. However, none of the exemptions provided in paragraph 2 of Schedule 2 to the BSA apply: the broadcast of the material was not an accidental or incidental accompaniment to the broadcast of other matter; it is not considered community information

2 Community Broadcasting Sponsorship Guidelines 2008, p3. 3 Australian Capital Television Pty Ltd and the State of New South Wales v The Commonwealth (1992) 177 CLR 106 at 166. or community promotional material; it is not a sponsorship announcement; and is not a promotion of the service provided under the licence.

Accordingly, 3WBC breached the prohibition on advertising at paragraph 9(1)(b) of Schedule 2 to the BSA.

In its submission dated 12 October 2015, 3WBC stated:

Aussie Home Loans Blackburn (AHLB) is a long time sponsor of 3WBC. In particular our VFL broadcasts. While we clearly state at points during the broadcast that AHLB are a sponsor of 3WBC, during the broadcast of play our commentators repeatedly used the term:

“ On the Aussie Home Leans Blackburn Scoreboard …”

[…] it is clear that our broadcast does not meet appropriate standards, this terminology is in breach of the guidelines as it is not tagged appropriately.

3WBC also provided its strategy to mitigate against future breaches of this nature. 3WBC’s strategy includes:

• Media accreditation – relevant presenters will be required to obtain accreditation from the VFL.

• Match day guidelines – 3WBC will develop match day guidelines to include guidance on how to correctly announce sponsors’ names during a broadcast. These match day guidelines will be incorporated into the wider VFL accreditation program.

• Expanded provisions in its sponsorship policy – 3WBC’s sponsorship policy will be updated to include provisions relating to sports broadcasting. Relevant presenters will be required to be trained prior to the commencement of the 2016 VFL season.

• Monitoring and feedback – 3WBC will monitor its broadcasts and provide feedback to the program producers.

• Disciplinary action for presenters found to be in breach of the station policies – presenters found breaching the stations’ policies will face disciplinary action.

It is considered that these strategies are appropriate in remedying the breach. In this regard, it is noted that this is 3WBC’s first breach of this provision. Consequently, no further action will be taken on this occasion. 2. Peter Jackson and Legendairy

The complainant expressed concern that the commentators promoted the brands Peter Jackson and Legendairy (sic) throughout the broadcast. For example:

• At 2.29 pm – “all set and ready for the preliminary final action here in the Peter Jackson VFL”

• At 4.20 pm – “you are listening to the second preliminary final of the Peter Jackson Legendairy [sic] VFL finals series” Peter Jackson and Legendairy are sponsors of the VFL – Peter Jackson is the naming rights sponsor of the Victoria Football League, while Dairy Australia is the sponsor of the Legendairy VFL Finals Series.4

In this context, references to Peter Jackson and Legendairy are of an advertising character. As stated above, material of an advertising character may be permissible if it falls under one of several exemptions provided in paragraph 2 of Schedule 2 to the BSA. This is considered below in relation to the references to Legendairy and Peter Jackson.

Paragraph 2(1)(a) – matter of an advertising character broadcast as an accidental or incidental accompaniment to the broadcasting of other matter

Paragraph 2(1) contains two elements, both of which are to be satisfied for the exemption to apply. The first of these elements (paragraph 2(1)(a)) requires that the material of an advertising character be broadcast as an accidental or incidental accompaniment to the broadcasting of other matter.

Having regard to the material broadcast, it is considered that references to Peter Jackson and Legendairy in this context were incidental to the broadcast of the match commentary.

The VFL games were the focus and substance of the five-hour broadcast. References to the commercial names of the league and finals series in which the individual matches were being played were not excessive – the commentators also used language such as ‘finals’, ‘VFL finals’ and ‘preliminary finals’ throughout the broadcast. Paragraph 2(1)(b) – the licensee does not receive payment or other valuable consideration for broadcasting the advertising matter

The second element of the exemption at paragraph 2(1) of Schedule 2 applies if the licensee did not receive any payment or other valuable consideration for broadcasting the advertising matter (paragraph 2(1)(b)). The licensee submits:

Peter Jackson and Legendairy (a dairy product marketing program) are major naming rights sponsors of the Victorian Football League and the relevant finals series.

Peter Jackson and Legendairy are NOT sponsors of 3WBC in any way, nor are we provided financial inducement by the Victorian Football League to mention their sponsors in a way that could be intentionally described as “advertising”.

In light of the foregoing:

1. it is considered that an ordinary reasonable listener would understand that Peter Jackson and Legendairy to be sponsors of the VFL and not of 3WBC; and

2. the broadcast of material of an advertising character was incidental to the broadcast of other matter (ie the football matches) and 3WBC did not receive any payment or other valuable consideration for the broadcast of the advertising matter.

Accordingly, the licensee did not breach the advertising prohibition at paragraph 9(1)(b) of Schedule 2 to the BSA when it referred to ‘Peter Jackson VFL’ and ‘Peter Jackson Legendairy VFL finals series’.

4 h tt p :/ / w ww . f o x s por ts p u l s e . c o m / a ss o c _ pag e .c g i ?c = 1-1 1 8-0-0 - 0 & s I D = 54 3 0 1 accessed by the ACMA on 16 February 2016.