Commercial Radio Australia Ltd ACN 059 731 467 Level 5, 88 Foveaux Street Surry Hills NSW 2010 T 02 9281 6577 F 02 9281 6599 E [email protected] I www.commercialradio.com.au
COMMERCIAL RADIO AUSTRALIA LTD
SUBMISSION TO
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY
29 JULY 2013
Introduction
Commercial Radio Australia Limited (“CRA”) is the peak industry body representing commercial radio broadcasting stations in Australia. CRA has 260 members and as such represents approximately 99.5 percent of the commercial radio broadcasting industry in Australia.
CRA welcomes the opportunity to comment on the Australian Communications and Media Authority’s (“ACMA”) discussion paper Contemporary Community Safeguards Inquiry (“Discussion Paper”) and confirms that the views set out in this submission represent the views of a majority of our members.
CRA members may also make separate submissions to the ACMA on discrete matters in which they have a particular interest.
At the outset we stress that CRA members do not wish to see this process result in more regulation for the commercial radio sector and would be pleased to see an outcome that was moving towards a reduction in regulation and accompanying compliance burden on commercial radio stations.
Further, as clearly indicated by the ACMA in both public forums and private meetings, this discussion paper is simply designed to garner information on which core matters and associated community safeguards should appropriately be addressed in codes of practice.
For that reason, CRA’s submission will not focus on:
1. the specifics of the current nine (soon to be ten) individual Codes; or
2. individual questions posed by the ACMA in the Discussion Paper.
CRA’s submission will focus on broad areas of critical importance for the commercial radio sector.
Background
The ACMA has indicated that it wishes to go back to “core principles” in respect of its assessment and analysis of the core matters and community safeguards that should be appropriately addressed in codes of practice developed by Australian broadcasters.
We believe this examination should most properly commence with the objects of the Broadcasting Services Act 1992 (the “Act”) and the Act itself.
The development of the Codes of Practice is prescribed in the Act. Section 123 of the Act provides that, in consultation with the ACMA, radio and television industry groups develop codes of practice applicable to the broadcasting operations of each of those sections of the industry,
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Section 123(2) provides that the Codes so developed (as relevant to radio broadcast) may relate to:
the prevention of programs that, in accordance with community standards, are not suitable to be broadcast by that section of the industry; promoting accuracy and fairness in news and current affairs programs; preventing the broadcast of programs that simulate news or events in ways that misled or alarm its audience, depict a process of putting a person into a hypnotic state, or designed to induce hypnosis; the broadcast of a quota of Australian music; handling complaints and reporting to the ACMA on complaints so handled; such other matters relating to program content as are of concern to the community.
Section 123(3) further provides that community attitudes to the following matters are to be taken into account: (i) physical and psychological violence; (ii) sexual conduct and nudity; (iii) offensive language; (iv) the portrayal in programs of matter that is likely to incite or perpetuate hatred against, or vilifies, any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, age, religion or physical or mental disability; (v) use of drugs, including alcohol and tobacco.
Clearly, in our view, since the enactment of Parliament’s intentions, the Codes that have been developed have become broader and more interventionist than contemplated by the Act.
1 COMMERCIAL RADIO REGULATION
1.1 The objective of regulatory parity should drive legislative and regulatory design
In a regulated media environment, CRA strongly supports the objective of regulatory parity within the legislative and regulatory framework.
To the extent reasonably practicable, regulatory parity should be established on the following levels: . across all sectors subject to the BSA; and . across different platforms within a particular sector.
As Figure 1 demonstrates at a high level, there is wide degree of disparity between the regulatory treatment of different sectors within Australia, with the commercial radio sector being one of the most heavily regulated sectors on the whole.
JULY 2013 PAGE 1
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Figure 1 - Regulatory imposts on selection of content distribution services in Australia
While regulatory parity is desirable, CRA accepts that it may not be possible to adopt a ‘one size fits all’ approach. Regardless, there is significant scope to improve the degree of regulatory parity within the media and communications sector and particularly in relation to the Codes of Practice.
In addition, there are some instances where regulatory parity does not achieve regulatory equality.
For instance, broadcasters are subject to a number of obligations under various non- broadcast legislation, such as the Corporations Act 2001, the Australian Securities and Investment Commission Act 2001 (ASIC Act) and the Competition and Consumer Act 2010 (CCA). Under these Acts, broadcasters are obliged to transmit certain warnings, disclaimers or qualifications in relation to advertising – for example to ensure compliance with financial product disclosure obligations[1] and the prohibitions against misleading and deceptive conduct.[2]
[1] Section 1018A of the Corporations Act 2001 provides that an advertisement for a financial product must identify the issuer of the product, the seller of the product, the location of the Product Disclosure Statement (PDS) and that the buyer must have regard to the PDS. [2] While publishers have a defence against misleading and deceptive conduct under both the ASIC Act in relation to financial products and the CCA more generally, in some circumstances this defence will not apply.
JULY 2013 PAGE 2
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
These obligations have a disproportionate impact on radio broadcasting as, unlike its competitors in television or online, the platform is limited to audio transmissions only, with limited capacity for additional incidental content such as disclaimers or qualifications.
With that said, CRA considers that there is, nonetheless, a strong argument in favour of implementing a higher degree of regulatory parity where possible, practical and suitable across different platforms than is currently the case by implementing a more flexible and less onerous regulatory framework for application to the commercial radio sector.
1.2 Options for the design of a legal and regulatory framework
In designing a legislative and regulatory framework for a converging media environment, there are a variety of models that can be implemented.
These models include:[3]
Approach Description No regulation Markets are able to deliver the required outcomes. Self-regulation Industry collectively administers a solution to address citizen or consumer issues, or other regulatory objectives, without formal oversight from government or regulator. Other than established bodies of law (such as privacy, defamation etc.), there are no explicit ex ante legal backstops in relation to rules agreed by the scheme (although general obligations may still apply to providers in this area). Co-regulation Schemes that involve elements of self-regulation and statutory regulation, with public authorities and industry collectively administering a solution to an identified issue. The split of responsibilities may vary, but typically government or regulators have legal backstop powers to secure desired objectives. Statutory Objectives and rules of engagement are defined by regulation legislation, government or regulator, including the processes and specific requirements on companies, with enforcement carried out by public authorities.
Each model above involves different levels of regulatory intervention and control, as depicted in the following representation:
Figure 2 - The continuum of approaches - degrees of formal intervention [4]
[3] Adapted from Ofcom, Identifying appropriate regulatory solutions: principles for analysing self and co- regulation, Statement, 10 December 2008, page 7. [4] Ibid.
JULY 2013 PAGE 3
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
While regulation cannot be readily segmented into discrete boxes[5] and the implementation of a legislative and regulatory framework can involve the use of more than one approach, it is clear that there is currently a wide discrepancy between how traditional broadcast platforms are treated relative to new and emerging platforms, which remain largely unregulated.
Commercial radio broadcasters are currently regulated through a combination of co- regulation and statutory regulation, broadly comprising:
. co-regulation through industry codes developed by CRA in accordance with the requirements of section 123 of the BSA, which are registered with the ACMA after endorsement by a majority of the CRA membership and consultation with the listening public; and
. statutory regulation through standards that form a condition of a commercial radio broadcasting licences and which permit complaints to be made directly to the ACMA.[6] Under section 125 of the BSA, THE ACMA may determine a program standard if it is satisfied that there is convincing evidence that a registered code of practice is not operating to provide appropriate community safeguards or no code has been registered for such a matter.
Commercial radio broadcasting licensees are currently subject to nine industry-wide codes and one industry standard in addition to its other statutory requirements under the BSA, the Privacy Act 1988[7], the Corporations Act 2001, the Australian Securities and Investment Commission Act 2001, the Competition and Consumer Act 2010 and advertising legislation, regulation and restrictions imposed on radio broadcasters through legislation for other industries, for example, alcohol; gambling; motor vehicles and financial services products.
The 10th Code, namely that concerning the prohibition of the promotion of Gambling and Betting Odds during Live Sporting Events, will be in place shortly.
CRA believes that the current framework applicable to commercial radio broadcasters does not represent a fair and transparent approach to communications and media regulation in the medium to long term.
As a result, CRA submits that a more practical and achievable model should be developed which approaches the challenges of regulation in a converged environment by confining regulatory imposts on all platforms to the greatest extent possible.
Community standards are determined now more than ever in a global context and localised community safeguards are increasingly compromised in a modern, globalised information environment with a variety of sources and platforms that can potentially ‘influence’ opinion, many of which are domiciled overseas.
[5] Ibid, page 19. [6] For example, Broadcasting Services (Commercial Radio Compliance Program) Standard 2000, Broadcasting Services (Commercial Radio Advertising) Standard 2000 and Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000. [7] Under the Privacy Act 1988, media organisations are subject to the National Privacy Principles in respect of their non-journalistic activities
JULY 2013 PAGE 4
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
The increasing accessibility of social media,[12] online news and entertainment and a vast range of other local and international internet content has meant that there are considerably more sources of information, entertainment and ‘influence’ not subject to the community safeguards imposed on Australian radio.
For the reasons stated above, the role that the concept of ‘influence’ of a particular medium and therefore the commensurate regulatory and compliance burden imposed must not only have regard to the changed industry dynamics brought about by convergence, but also be flexible enough to accommodate the dynamics of the future; when greater regulatory controls may be necessary for platforms with increasing levels of influence.
While the ACMA has recently stated that the concept of media diversity is a ‘broken concept’ in a converged environment, with the concept of ‘influence’ not appropriately considering new forms and suppliers of communications and media content,[16] CRA wishes to clarify that the concept itself is not the issue, but the manner in which that concept is applied in light of a converging environment.
In some instances it appears that the issue of emerging content suppliers is “too hard” but an easy course of action is to simply impose more regulation on traditional media such as radio.
Conclusion
In light of the above, CRA considers that the best approach to delivering a higher degree of regulatory parity is to recalibrate the current regulation which applies to existing free-to-air commercial radio broadcasters. While it is not realistic to adopt a ‘one size fits all’ approach to regulation, it is practical to recalibrate and reduce the level of regulation currently applied to traditional broadcast platforms.
This approach will ensure a higher degree of alignment in regulatory treatment and thus equity of treatment between platforms than is currently the case, while having regard to the different levels of ‘influence’ that currently exist and how that ‘influence’ may evolve over time across platforms.
1.3 Drawbacks of existing legislative and regulatory framework CRA’s views as to which regulatory model should apply to commercial radio broadcasters in a converging environment and therefore how any resultant Codes may be framed is influenced by the objective of ensuring a degree of regulatory parity with new and emerging services and platforms (which remain largely unregulated) and by the collective experience of our members in dealing with the current co-regulatory and statutory regulation frameworks.
In particular, the manner in which the co-regulatory model has worked in recent years is a cause of concern for our members. In the view of the industry, the current model, whilst theoretically ‘co-regulatory’, in fact confers on the ACMA broad interventionist powers that are sometimes exercised with questionable justification.
[12] In 2011, Facebook surpassed 600 million active users. [16] ACMA (2011), Broken concepts: The Australian Communications Legislative Landscape, August, p.16
JULY 2013 PAGE 5
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
The structure of the current model provides the industry with the responsibility for discrete areas of regulation, but this responsibility is subject always to the regulator stepping back in. This contrasts with a properly implemented co-regulatory model which constrains the regulator’s role to the exercise of narrow reserve powers in more limited circumstances.
An example of this type of intervention occurred in 2010 when the ACMA requested that an industry code (the Live Hosted Entertainment Code) be prepared and applied across the entire commercial radio industry in response to an isolated incident at a single radio station in one city (i.e. the Kyle and Jackie-O lie-detector segment).[17]
This ‘knee-jerk’ decision was made despite there being no evidence of widespread community concern with the commercial radio industry as a whole, beyond the specific incident.
Regardless of the fact of no widespread community concern, the regulator decided that there was, in its view, an appreciable concern in the community in relation to the whole commercial radio industry and that an industry code was therefore justified.
Commercial Radio Codes of Practice and Commercial Radio Standards apply to all industry participants without reference to a licensee’s individual circumstances, such as an unblemished record of compliance or a low level of listener complaints.
This creates an environment where one isolated event can have a significant and punitive impact on the industry more broadly, imposing unnecessary burdens and detrimentally affecting the industry’s competitiveness.
Another example which is currently being played out is the Code relating to the prohibition of betting odds during Live Sporting Events. This Code has now extended to the prohibition of Gambling and Betting Odds during Sporting Events, and CRA would argue that the reach of this Code has significantly broadened due to the community response to the recent conduct of other players in the industry, and not commercial radio.
Similarly, while the ACMA in its recent options paper in respect of the Review of the commercial radio standards concluded that industry-wide compliance programs were no longer necessary,[18] its approach to a range of other matters suggests a strong bias in favour of statutory regulation where, in CRA’s view, the use of a code of practice would be sufficient.
We certainly do not need both and there is definitely overlap in the current code and legislative framework. CRA believes that the current regulatory model often creates a situation where there is unnecessary duplicative regulatory and legislative activity in relation to particular areas of regulatory interest.
In light of the issues experienced by CRA members under the current regulatory framework and the lack of regulatory parity that currently exists, CRA’s preference is to transition away from the current co-regulatory and statutory regulation framework in favour of a self- regulatory framework for the commercial radio sector.
[17] See ACMA (2010), Live hosted entertainment radio programs: Adequacy of community safeguards for the protection of participants. [18] ACMA, Review of the Commercial Radio Standards: Options Paper, 2011, p.40.
JULY 2013 PAGE 6
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
1.4 Self-regulation
CRA maintains the view that the commercial radio sector is well suited to a self-regulatory model and satisfies the basic pre-requisites for the implementation of this model.
The current industry culture, combined with strong commercial incentives to comply with audience expectations and provide valued local content and a diversity of views, strongly implies that self-regulation would work as effectively as would coercive regulation, except with significantly less regulatory burden.
The nature of convergence reinforces the commercial discipline on commercial radio licensees to effectively meet the needs of their audiences.
Most importantly, CRA is prepared to work with stakeholders to ensure that these issues are adequately addressed and a self-regulatory model can be implemented in an effective manner.
Whereas the current co-regulatory model is implemented through a ‘package’ of legislation, regulation, industry codes and regulatory decisions, a self-regulatory model is inherently more ‘self-sustaining’ in nature.
This provides for a higher degree of flexibility in implementation that is not typically available in the context of co-regulation or statutory regulation.
While regulators frequently point out that pure self-regulatory models without any form of government or statutory involvement are rare,[23] the application of such a model to the commercial radio sector is not without precedent.
For example, Canada, which has similar social and political, constitutional and legal structures to Australia, has implemented a self-regulatory model for the media and communications sector which has operated successfully over many years.
A closer example of a successful self-regulatory model is the Advertising Services Bureau which with a Committee which is representative of the “community” successfully deals with issues concerning complaints about advertisements.
1.5 Conclusion
CRA proposes replacing Part 9 of the BSA (and the co-regulatory/standard model contemplated within it) with a self-regulatory model.
Some of the elements that are currently embodied within Part 9 of the BSA could potentially be transposed into the legislative framework that seeks to implement a self-regulatory model.
[23] ACMA, Optimal conditions for effective self and co-regulatory arrangements, Occasional Paper, June 2010, p. 4. See also, Ofcom, Identifying appropriate regulatory solutions: principles for analysing self and co- regulation, Statement, 10 December 2008, p. 11.
JULY 2013 PAGE 7
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
2 COMMUNITY STANDARDS
In the view of CRA, the ‘community standards’ criteria in the BSA promotes regulation that is unnecessary, unpredictable and partisan to regulatory self-interest.
Commercial radio serves a vast number of different audiences with different views, tastes and interests. Attempting to create a single set of ‘community standards’ is unrealistic, unachievable, and creates a substantial risk of a subjective or ‘lowest common denominator’ approach to regulation that fails to serve any clear public purpose and reduces the ability of industry to create further innovative and diverse content and communication opportunities as a result.
CRA proposes the ‘community standards’ criteria be removed in favour of a more open standard that allows the market to better cater for the actual standards, views and interests of listeners.
2.1 The assessment of ‘community standards’ needs review An objective of the Broadcasting Services Act 1992 is to encourage providers of broadcasting services to respect community standards in their provision of program material to their audience.
In CRA members’ case, the relevant audience is their listeners.[1]
This objective is reflected through the legislative and regulatory framework, including the Commercial Radio Codes of Practices, which have been developed pursuant to the Act to prevent the broadcast of programs that are not “in accordance with community standards” and to also provide a method of classifying programs to “reflect community standards”.[2]
We have already set out the matters that the Act provides must be taken into account when developing codes of practice relating to ‘community standards”.
While the commercial radio industry supports efforts to safeguard audiences from material considered by its audiences as inappropriate, CRA submits that the concept of ‘community standards’ as currently applied in the regulatory regime applicable to commercial radio broadcasters is largely unworkable and is subject to enforcement on an unpredictable and to some degree a subjective basis.
CRA questions the need to reflect such criteria within the framework at all. In a converged environment where audiences are increasingly fragmented and communities are exposed to increased levels of program choice from various sources across multiple platforms, any attempt to regulate commercial radio content on the basis of a broad and indefinable ‘community standard’ is simply unworkable.
CRA submits that using the concept of ‘community standards’ for the regulation of commercial radio content is not only inherently flawed but in its current application could fail to achieve an appropriate balance between community protection, the views of listeners and target audiences and efficient regulation.
[1] Broadcasting Services Act 1992, s.3(1)(h). See also, s.3(1)(ha), which applies to designated content / hosted service providers. [2] Broadcasting Services Act 1992, s.123(2).
JULY 2013 PAGE 8
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Commercial radio serves a vast number of different audiences with correspondingly varied views, tastes and interests. CRA membership is 260 and is comprised of AM and FM stations in capital cities and in large and small regional and remote areas.
Formats range from music genres such as adult contemporary to pop to rock to talkback, current affairs, news and sports. Commercial broadcast radio encompasses a diverse range of formats, audiences and geographical areas.
Attempting to create and impose a single set of ‘community standards’ to which all such audiences subscribe, results in an unrealistic impression of a community that does not exist, leading ultimately to a restriction on free speech and a constraint on the access to radio content that members of the community actually desire.
In addition, it creates the substantial risk of a ‘lowest common denominator’ standard that affects far more content than is necessary to achieve any clear public purpose and reduces the ability of industry to create further content and communication opportunities as a result.
2.2 ACMA’s current approach to determining community attitudes and standards
A recent review undertaken by the ACMA into commercial radio standards, is illustrative of both the difficulty in determining a one-size-fits-all ‘community standard’ and the problems of attempting to accurately measure general concerns in the community in relation to broadcasting content.
In 2009, the ACMA conducted a review of the current commercial radio standards in relation to advertising, commercial influence and compliance programs, “to ensure that regulation of commercial radio in these areas deliver appropriate and contemporary community safeguards”.[4]
To inform that review, the ACMA commissioned a number of research papers, including an attitudinal study by Ipsos MediaCT which aimed to “examine the views and attitudes of Australian radio listeners to the material they hear on radio”.
The Community Attitudes to Radio Content, study conducted in 2010 involved a national telephone survey of 1537 Australians aged 15 years and over, of which 1423 were radio listeners.[5] In addition, the ACMA also commissioned a study in relation to Listener Attitudes to Advertising, Sponsorship and Influence on Commercial Radio.[6]
In its March 2011 Options Paper, the ACMA referred to this research as the justification for a number of its recommendations which required an assessment of contemporary ‘community standards’.[7]
The commercial radio sector has already expressed significant concerns to the ACMA regarding the reliability of this research, the weight given to the research by the ACMA and the way in which the ACMA approached its conclusions as it appears to uncritically equate ‘community standards’ with selected outcomes of its own (limited) study’s findings.
[4] See
JULY 2013 PAGE 9
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
For instance, the ACMA’s assessment of ‘community understanding’ appears to be based solely on its own studies, with no acknowledgement of the limitations of the research or consideration of conflicting evidence. In particular, the ACMA:
. disregarded the limited public participation in the review process; . appeared to dismiss as irrelevant the fact that only a very small number of complaints had been received by licensees over the preceding 10 years (9 complaints); and . failed to acknowledge the limitations of the research, and in so doing cast reasonable doubt on the credibility of its conclusions as research of this type can only ever offer an insight – rather than an answer – as to the nature of community attitudes.
In an expert analysis of the ACMA’s research, Professor Stan Glaser (retained by CRA) concluded that:[9] the questionnaire administered has numerous design flaws. These relate to significant problems in the wording of questions, which make responses to these questions difficult to interpret. The structure of the questionnaire can also lead respondents to answer questions in a way that indicates issues have salience for them when, in fact, they may not.
As a result of these factors it is very likely that the findings of the ACMA research overstate community concern in relation to commercial radio.
Professor Glaser commented in relation to the Community Attitudes to Radio Content study that its:[10] …deficiencies make it highly unlikely that the results can be regarded as an unbiased reflection of community attitudes or behaviour. Hence I have concluded that the translation of these results into public policy is unwarranted.
Furthermore, even accounting for an overstatement in the level of community concern found in the research, the ACMA’s past research shows that there are extremely low, and perhaps non-existent, levels of concern in actual radio listeners (See Figure 3 below).
The Competition Economist’s Group (CEG) (retained by CRA) also conducted an independent assessment of the ACMA’s Options Paper and found, amongst other things, that:[11]
…the ACMA’s survey of community attitudes is both inaccurate and biased indicator of the benefits of regulation; and
…the use of surveys to determine regulatory policy directions is fraught with the risk of unintended consequences.
[9] Glaser, (2011) Report by Professor Stan Glaser on Listener Attitude Research undertaken on behalf of the Australian Communications and Media Authority, p.21. [10] Glaser, (2011) Report by Professor Stan Glaser on Listener Attitude Research undertaken on behalf of the Australian Communications and Media Authority, p.2. [11] Ockerby and Hansson (2011) ACMA review of radio broadcasting standards: A report for Commercial Radio Australia, June, pp. 5-6.
JULY 2013 PAGE 10
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Heavy reliance on a survey-based approach has resulted in regulatory decisions being informed by an inaccurate image of community attitudes as they relate to commercial radio and its content.
This strongly indicates that a reliance on ‘community attitudes’ studies is an inadequate basis for the application of onerous regulatory imposts.
Figure 3 - Table extracted from ACMA research showing sources of concern and offence by listener type, 2009
Finally, the ACMA itself acknowledges that in the context of its consideration of whether or not broadcasters may be in breach of community standards of decency, that it determines these issues itself, and as described in the recent Citizen Consultation session on Decency, it is itself not representative of the community in the characteristics of the Authority membership or staff.
The ACMA has further sought feedback on what purpose is served by the requirement to have regard to the demographic characteristics of the audience of a relevant program.
CRA submits that insofar as its members are concerned, this information is highly relevant and of critical importance.
JULY 2013 PAGE 11
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
The very nature of radio, its program formats and licence areas, together with research that CRA has about these audiences, will offer a much clearer basis for the ACMA to determine the expectations of that demographic and what may therefore be acceptable to them and what is not.
CRA believes that to an extent far greater than, for example, for free-to-air television, there is a conscious choice in terms of what radio program or station people switch on and listen to.
These points are not intended to cause offence to the ACMA but seek to highlight the inherent difficulties facing the regulator in defining what constitutes a ‘community standard’ and how the methodology that seeks to extrapolate that standard is open to interpretation and the ACMA’s own subjective view points and regulatory interests.
2.3 Conclusion
CRA does not claim to have all the answers when it comes to suggesting an alternative approach to ‘community standards’ and notes that views in the community are undoubtedly varied as to the best approach to ensuring that commercial radio broadcasts reflect the views and expectations of the Australian public.
However, as a general proposition, CRA strongly considers that the market is best placed to determine whether broadcasts reflect the views and expectations of the Australian public.
For the reasons outlined above, CRA submits that a subjective concept, such as ‘community standards’, is not a suitable benchmark to determine the appropriateness or not of content on broadcast radio or other platforms.
CRA’s preference, therefore, is to remove the concept of community standards from the regulatory framework and to replace it with:
. a more workable standard, such as: “Communications and media services available to Australians should reflect the standards, views and expectations of the Australian public, with sole or in any event primary consideration given to the nature of the relevant programming or content and the audience it is likely to serve”;
. a complaint based mechanism that utilises that same standard for addressing community concerns in a way that specifically takes account of the nature of the programming and the intended audience; and
. a better representation of the “Australian public” on the Authority itself, similar to te approach taken by the Advertising Services Bureau.
3. FAIRNESS AND ACCURACY
CRA will address in more detail the Code relating to fairness and accuracy in news and current affairs programs when the codes themselves are under review.
It is however the view of CRA members that Code 2 concerning Fairness and Accuracy is at times too onerous, impinges on editorial freedom and is open to abuse by complainants.
JULY 2013 PAGE 12
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Further, there is a compelling argument to separate the concepts of Fairness on the one hand and Accuracy on the other.
CRA queries the need to have a Code for Fairness – in particular a requirement for balance in the presentation of significant viewpoints - in view of:
(a) the multitude of media platforms available to consumers to source news; and
(b) the right of a particular station to present a view from a particular standpoint.
Radio licensees should be allowed to present one perspective or more of one perspective to cater to the specific audience purposely tuning in to a station to hear a particular viewpoint.
In our view, this Code (2) requirement encroaches on radio licensees' editorial freedom which is a right that should not be impinged upon by the regulator.
While CRA accepts that a Code for Accuracy is appropriate for news programs, and possibly for current affairs programs, it certainly is not appropriate for general talkback programs.
This code should only apply to substantive facts or main themes in a broadcast, not to every single comment made, as appears to have been the ACMA’s application of the code in past instance.. The nature of live current affairs radio with talkback means that every word is not scripted so every conversation cannot be checked prior to broadcast.
The difficulties with each of the elements in Code 2 are that, in the experience of CRA members, the majority of complainants are not listeners to the station but often non-listeners with a self-interested motivation for complaining.
For example, typically political parties and special interest groups with an unstated but obvious agenda make complaints under these Codes, leading to time-consuming investigations (for both the ACMA and the licensee) that do not assist in improving content for the audience. The issue of complaints is addressed in more detail below, but the industry view is that only listeners should have standing to make complaints under this Code (and other Codes).
CRA does however wish to comment on the ACMA’s observation in the Discussion Paper, [at 3A.2.5] that there are no remedies in relation to fairness and impartiality or significant viewpoint requirements in the commercial radio codes.
CRA does not consider there should be.
Talkback radio, which has been described by the ACMA as “opinion rich” material, is by definition distinct from a portrayal of news and current affairs and should not be subject to the same requirements as traditional news and current affairs programmes.
In the context of its discussion of this issue the ACMA has posed a number of questions which will not be specifically addressed given the industry’s overriding view on this issue.
The Discussion paper does raise the issue of the ACMA compelling a licensee to make an on-air correction.
JULY 2013 PAGE 13
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
CRA believes that this is not necessary for a number of reasons:
1. licensees take their obligations, not just under the Code, but in presenting accurate information very seriously and will often issue an on-air correction of its own accord if it believes that it has made a serious error;
2. as a general observation, the time taken between an actual broadcast and for the ACMA to consider particular issues is often lengthy which renders the value of a compelled on- air correction meaningless;
4. COMPLAINTS CRA has made its concerns on the operation of the complaints regime well known to the ACMA, and in particular in relation to ‘stale complaints’.
A threshold issue in relation to clause 5.7 of Code 5, is whether or not a complainant who has not complied with this clause is entitled to make a complaint under section 148 of the Act.
CRA submits that there is no such entitlement and further believes that clause 5.7 imposes a clear limitation on the making of complaints. It follows from this analysis that because the requirements of section 148 of the Act are not satisfied that the obligation to make a complaint under section 149(1) of the Act is not triggered: paragraph 23 of the Harbour Radio Pty Ltd v ACMA (2010) FCA 478, in which Buchanan J observed
“if the terms of s148 of the Broadcasting Services Act are not met, the provisions of s 149 are not engaged.”
The Harbour Radio decision, at para 33 of the judgment, establishes that section 148(b) of the Act imposes requirements with which a complainant must comply, and further that a code dealing with complaints may impose conditions on the making of a complaint. The Court further held that the purpose of Code of Practice 5 is to prescribe the method of handling complaints made by members of the public to licensees regarding compliance with the Codes.
The Codes of Practice are not statutory instruments and are used by members of the public who are not versed in law or public administration, and they must be considered in that context.
Clause 5.7 provides that: “If a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to company with this Code of Practice 5”.
JULY 2013 PAGE 14
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Section 148 of the Broadcasting Services Act provides that:
148 Complaints under codes of practice
If: (a) a person has made a complaint to a provider of broadcasting services on a matter relating to:
(i) program content; or (ii) compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and
(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and
(c) either: (i) the person has not received a response within 60 days after making the complaint; or (ii) the person has received a response within that period but considers that response to be inadequate; the person may make a complaint to the ACMA about the matter.
The case of Harbour Radio Pty Ltd v ACMA [2010] FCA 478 establishes that paragraph 148(b) imposes requirements with which a complainant must comply: see para 33 ff of that judgment. That case also establishes that Code 5 is a code of practice “relating to the handling of complaints”: see para 35.
CRA submits that the complaint process as set out in section 148 is enlivened only if (among other matters), the complainant complies with any relevant requirement for the handing of complaints.
Clause 5.7 of the Commercial Radio Codes of Practice provides that:
“If a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to comply with this Code of Practice 5”.
The wording of clause 5.7 is instructive.
CRA submits that this clause does not merely relieve a licensee from the obligation to respond to a complainant, but from all of the complaint-handling obligations contained in Code 5 including the keeping of a record of the complaint (cl 5.10), supplying details of the complaint to CRA for inclusion in industry complaints data provided to the ACMA (cl 5.11), to conscientiously consider and respond to the complaint (cl 5.5) and to receive and record the complaint (cl 5.2).
Further, a licensee also has no obligation to inform a complainant of the right to refer the complaint to the ACMA, under clause 5.6.
Clearly, the effect of clause 5.7 is to take a complaint to which it applies, outside the purview of the Code.
JULY 2013 PAGE 15
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
Such a complaint need not be recorded even for statistical purposes. This point is particularly important, having regard to paragraph 123(2)(h) of the Act, which provides that codes of practice may relate to (amongst other matters):
(h) methods of:
(i) handling complaints from the public about program content or compliance with codes of practice; and
(ii) reporting to the ACMA on complaints so made; ...
As noted, clause 5.7 removes a complaint which does not comply with the clause from the industry’s ACMA-related reporting obligations. The reason for this result, in terms of section 123(2)(h), is that a complaint that does not comply with clause 5.7 is not a complaint “so made [under the relevant complaint-handling code]”.
Self-evidently, reporting to ACMA can only be made in relation to compliant complaints, which are also complaints that satisfy section 148(b) of the Act.
Code 5.7 is drafted on this basis and this, in our view, is exactly what the drafter of the Act had in mind, in referring to reporting to the ACMA on “complaints so made”.
The absence of a reporting obligation under clause 5.7 points ineluctably to a conclusion that a complaint that does not comply with clause 5.7 does not satisfy section 148(b), because section 123(2) (h) evinces a very clear legislative intention that the two are related. No other conclusion is available.
Of further note, the language of clause 5.7 is even wider than that used for clause 5.9, which provides that “a licensee is under no obligation to respond to or record complaints made anonymously”.
It is a short step to conclude that the intention in clause 5.9 is that a complainant must identify herself or himself, as a condition for the making of a complaint. If this is not so, the licensee is likely to be in some difficulty in complying with the Code- for example, it could not comply with clause 5.10(b), requiring the name and address of the complainant to be recorded.
Similarly, the underlying intention of clause 5.7 is that a complaint must be made within the time prescribed by that clause. The similarity in wording between clauses 5.7 and 5.9 point to that conclusion.
It would be an odd result if clause 5.7 removed a complaint entirely from the purview of the Code, as if it had never been made, yet the ACMA was at liberty to investigate the complaint under section 148. In that case, the license may well have no record of the complaint and experience difficulty responding to the ACMA, during the course of its investigation.
It is very unlikely that such a result was intended.
CRA considers the better view is that clause 5.7 is intended to operate as a limitation on complaints.
JULY 2013 PAGE 16
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
There are practical reasons which underpin that intention. Under the alternative view, a licensee could make a complaint even years after the relevant broadcast, when the licensee is unlikely to have any record of the broadcast, the relevant ‘corporate memory’ may not be available and thus not in a position to comprehensively respond.
Instead, clause 5.7 has the effect of requiring that a complaint be made in a timely fashion.
When considered in terms of its intention, substance and practical effect, a complainant who has not complied with clause 5.7 has not complied with a code of practice relating to the handling of complaints.
The heading to clause 5.7, “Stale Complaints”, provides further textual support for this conclusion.
The relevant definition of “stale” in the Macquarie Dictionary is : “4. Law having lost force or effectiveness through absence of action, as a claim...”
A stale complaint is therefore to be regarded as one which has lost force or effectiveness. It is thus a complaint which no longer requires consideration. The heading to clause 5.7 indicates an intention by the draftsman that a complaint to which the clause applied was not capable of activating the complaint process, either initially before the licensee or to ACMA under section 148.
A further observation for consideration by the ACMA is that section 148(c)(i) of the Act permits a complaint to be made to the ACMA if “the person has not received a response within 60 days after making the complaint”.
Yet clause 5.7 relieves the licensee (amongst other matters) from the very failure on which the paragraph is premised, being the failure to respond to complaint.
CRA considers it very unlikely to have been intended that a complainant could make a complaint which did not comply with clause 5.7 and merely wait 60 days in order to complain to the ACMA.
That approach entirely emasculates clause 5.7, because if a licensee ever sought to rely on it to decline to deal with a complaint, the complaint process to the ACMA will nevertheless be available. A licensee’s reliance on clause 5.7 is futile.
But more importantly, in terms of the interpretation of the Code, the approach renders clause 5.7 otiose, in any practical sense. It is also contrary to clause 5.7’s characterisation of complaints as “stale”.
Notably, the Explanatory Memorandum to the Broadcasting Services Bill 1991 stated in relation to Part 11 of the Bill that the Bill:
“...sets up a tiered mechanism for dealing with complaints by members of the public about broadcasting services and their compliance with program standards and codes of practice. Complaints are first to addressed by broadcasting industry bodies and should only be referred to the ABA if a satisfactory outcome is not achieved. However, complaints regarding alleged breach of the Act or program standards may be directly referred to the ABA...”
JULY 2013 PAGE 17
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
A view that clause 5.7 is not a relevant code for the purposes of paragraph 148(b) of the Act is contrary to this legislative intention. Instead, the ACMA becomes the first forum for consideration of a complaint. This was not the intended approach of the legislative draftsman.
The better view is that clause 5.7 is a code to which paragraph 148(b) applies.
Conclusion A view that clause 5.7 acts as a “gate” through which the complainant must pass, in order to make a complaint to the ACMA under section 148 flows from a number of important factors. These include:
clear legislative wording in paragraph 123(3)(h), which is the authorising provision for Code 5 and seems to admit only of the conclusion put forward by CRA;
the operation of clause 5.7, which entirely removes a complaint to which it applies from the purview of the complaint process;
other clauses of clause 5 which evoke a similar intention and are also similarly worded (albeit not as widely worded as clause 5.7);
the unlikely intended result if a complainant is not entitled to receive a response from a licensee but is nevertheless entitled to complain to the ACMA, which would render clause 5.7 otiose. This result is also be contrary to a well established legislative model, in which complaint processes are “tiered”.
the potential impracticality of the alternative interpretation.
Section 149(1) of the Act provides that:
“..Subject to subsection (2), the ACMA must investigate the complaint.”
However, as Harbour Radio established, section 149 operates only if the requirements of section 148 have been satisfied. This is not the case when a complainant fails to comply with clause 5.7 of the Code. The provisions of section 149 therefore have no operation.
In CRA’s respectful submission, it would be a clear error of law for the ACMA to proceed to investigate a complaint under section 149, in circumstances where clause 5.7 of the Code applied.
CRA also invites the ACMA to consider then the interaction of the above analysis with section 170 of the Act which provides that:
‘The ACMA may conduct investigations for the purposes of the performance or exercise of any of its broadcasting, content and datacasting functions (as defined in the Australian Communications and Media Authority Act 2005 ) and related powers.’
This effectively allows the ACMA to, in their discretion, investigate any matter, complaint or otherwise.
JULY 2013 PAGE 18
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
It has been the experience of CRA members that the ACMA has relied on this section to investigate matters where there may not have been a specific complaint, and broadcasts which are dated, even beyond any reasonable concept of a “stale” complaint. CRA submits that this section should specifically exclude any matter that is otherwise covered by the complaints code and provisions in the Act concerning complaints handling as discussed in detail above.
CRA supports greater certainty around the complaint process, not just in terms of time from broadcast but also who can complain.
CRA’s strong view is that the complainant must be a listener of the relevant program. CRA does not support the right that any person can initiate a complaint.
We note that separate to this Discussion Paper the ACMA is compiling research into the costs of complying with the Code generally, and we are certain that this will demonstrate the excessive finds and resources that broadcasters currently devote to this.
5. AUSTRALIAN MUSIC The Australian music content quota requirements which apply to commercial radio licensees are currently reflected in Code 4 of the Commercial Radio Codes of Practice 4. Code 4 commits commercial radio broadcasters to quotas for Australian music depending upon the individual station’s predominant format. The maximum quota requires Category A stations1 to transmit 25% Australian music, one quarter of which must be new Australian music.
CRA’s view is that the efficacy of the quota system is undermined by the ability of alternative distribution platforms to completely bypass any local content obligations.
The more dynamic competitive environment brought about by the emergence of online music services means that placing Australian music quotas exclusively on the ‘easy targets’ of broadcast radio licensees places the sector at a distinctive competitive and economic disadvantage.
It is unsustainable and inequitable for free-to-air commercial radio broadcasters to be subject to Australian music quotas when internet-only services and streamed content provided by telecommunications companies and others are not subject to any intervention or requirement to support local music.
To this end, CRA believes that this requirement should be extended to other platforms that have a minimum specified take up rate (e.g. Australian based online music services) as a means of ensuring a greater level of regulatory balance between platforms.
While the commercial broadcast radio industry strongly supports Australian music, it should be noted that the ability to meet any Australian music content quota requirements is heavily dependent on the production and availability of quality Australian music. In this regard, CRA strongly believes that greater effort needs to be expended at the production level to ensure that a wide range of quality Australian music content continues to remain both available and attractive to music consumers.
1 Category A stations are those that predominantly offer mainstream rock, album oriented rock, contemporary hits, top 40 and alternative genre.
JULY 2013 PAGE 19
CONTEMPORARY COMMUNITY SAFEGUARDS INQUIRY SUBMISSION OF COMMERCIAL RADIO AUSTRALIA
CONCLUSION
CRA has raised a number of key general issues and concepts in this submission.
As noted at the outset, more specific comments will be made when the actual review of the Commercial Radio Codesof Practice is implemented after this general inquiry.
CRA and its members would be pleased to continue to assist the ACMA with this inquiry and with any aspects of this submission that require further detail or clarification.
JULY 2013 PAGE 20