Investigation Report No. 2776

File No. / ACMA2012/102
Licensee / Today FM Sydney Pty Ltd
Station / 2DAY
Type of Service / Commercial Television
Name of Program / Kyle & Jackie O Breakfast Show
Date of Broadcast / 22 November 2011
Relevant Code / Clause 5.5 of the Commercial Radio Australia Codes of Practice 2011
Date Finalised / 6 July 2012
Decision / Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011

The complaint

On 11 January 2012, the Australian Communications and Media Authority (the ACMA) received an unresolved complaint regarding theKyle & JackieO Breakfast Show broadcast on 22 November2011 by the licensee of 2Day FM, Today FM Sydney Pty Ltd.[1]

The complainant has alleged that he did not receive a response from the licensee to his complaint, and referred the matter to the ACMA for investigation.[2]

This allegation has been investigated in accordance with clause 5.5 of the Commercial Radio Australia Codes of Practice 2011 (the Codes).

Assessment

The assessment is based on submissions from the complainant and the licensee.

Issue:Complaint handling

Relevant provision

Complaints

5.1 For the purposes of this Part, a complaint is an assertion:

(a)Made in writing by letter or fax by a person who signs the letter or fax and provides his or her name and address or, where the licensee has technological capacity, by an online electronic complaint form in which identifying information for the complainant is required;

(b)To a licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee;

that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.

5.2The licensee must make appropriate arrangements to ensure that complaints are received and recorded by a responsible person during normal office hours.

Advice in Writing

5.5Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint.

Complainant’s submission

The complainant submitted:

I made a written complaint the following day (23 November 2011) and faxed it to the Station Manager of 2DAY-FM on 02 9367 5370. I have a fax ‘Activity Report’ which shows that the fax was successfully transmitted at 1:36pm. Sixty days have now elapsed but no reply has been received by the station.

In response to the ACMA’s request for further information on 29 February 2012, the complainant submitted:

When I initially set out to make a complaint to 2DayFM, I went to the "Contact Us" section of their website:

At the bottom is a link where it says:

"If you wish to make a complaint regarding broadcast codes please click here"

I clicked on the link and filled out my details. The system was supposed to send a complaint form to my inbox, but this never arrived. I googled this issue and found that a couple of other people had mentioned the same problem, so I then did another google search along the lines of "2day listener complaint form"

I then found a link to a PDF document entitled:

"COMMERCIAL RADIO CODES OF PRACTICE - LISTENER COMPLAINT FORM"

at this link:

At the bottom of this form is a fax number (02 9367 5370) and a postal address (GPO Box 4442 Sydney).

I decided to fax my complaint, and used this fax number. I retained a copy of the transmission report (which I attached to my complaint to ACMA) showing that the fax was received.

I then waited for the stipulated 60 days and, when no response was received from 2DayFM, I sent the complaint to ACMA.

[...]

I couldn't find a postal address or fax number anywhere on their "Contact Us" page.

[...]

Licensee’s submission

The licensee’s response to the ACMA in relation to clause 5.5 of the Codes was as follows:

[W]e have reviewed the facsimile number that was placed on the CRA’s [Commercial Radio Australia] website ( within the “Find a station” section. We confirm that the incorrect facsimile number was listed for 2DayFM on 23rd November 2011. The facsimile, if it was indeed received by us (and, to date, we have not been able to confirm any such receipt, conclusively) was sent to the facsimile number for [name of staff] a digital designer, who has not been trained to receive listener complaints. Accordingly, it is reasonable to assume that (a) the facsimile was received by us and inadvertently misplaced and/or discarded; or (b) that the transmission may have failed at some point and it was not received by us.

We take our responsibilities under [the Codes] very seriously. In the course of dealing with this matter, we have (i) updated the facsimile number for 2DayFM on the CRA’s website (0296367 5557); and (iii) ensured that any future complaints shall now be directed to an employee who has been trained in the complaints handling process. We believe that the steps we have now taken shall allow us to respond to any future complaints sent to us by facsimile in a timely fashion, in accordance with the Code 5 of the Codes.

[...]

The licensee submitted to the ACMA on 27 April 2012:

Having now been provided with the complainant’s submissions in full, the licensee can advise the ACMA that the form the complainant ‘googled’ is an out of date form that was circulated by third party activists online. For example, see:

The form pre-dates the implementation of the electronic complaints handling process by the licensee. It does not form any part of the 2Day FM website or 2Day FM’s online electronic complaints handling process.

Accordingly, based on the above, the licensee submits that there is no legal obligation for the licensee to respond to a complaint that has relied upon erroneous information supplied by third parties. To accept any such complaint would, the licensee submits, be: (i) an abuse of the complaints process, as set out in clause 5.8 of the Codes; and (ii) contrary to section 4(2) of the BSA as it would create a potentially open-ended administrative burden on the licensee.

...

The licensee submitted to the ACMA on 6 June 2012:

...[T]he licensee cannot reasonably be expected to respond to complaints made outside of the complaints handling process. Further, on being made aware of the complaint by a member of the ACMA’s staff (after the 30 day time limit set out in clause 5.7 of [the Codes] had elapsed), the licensee was informed that the complainant had spurned the licensee’s reasonable attempts to respond to the request (thereby rendering it impossible for the licensee to respond tin accordance with Clause 5 of the Codes.

Finding

The licensee breached clause 5.5 of the Codes.

Reasons

The ACMA is satisfied that the complaint made to the licensee was a valid code complaint pursuant to the Clause 5.1 of the Codes.

The complainant stated that after encountering difficulty with the station website electronic complaint lodgement system, he found a 2DayFM complaint form at:

The complainant obtained the facsimile number (02 93675370) via this form. He made a complaint in writing, which adequately identified the broadcast, the content of concern, and the nature of his complaint. The complainant signed the complaint,[3] and sent it via facsimile to the station. The complainant provided a facsimile activity report confirming the transmission to that number.

The ACMA accepts the complainant’s version of events.

The ACMA also accepts the licensee’s submission that it is reasonable to assume that it did receive this fax but that it is likely that it has been misplaced, inadvertently discarded or otherwise not come to the attention of the licensee or a person employed by the licensee with the responsibility for dealing with complaints, or alternatively that a transmission failure occurredis also accepted.

The licensee advised that, as at the date the complaint was made, the CRA website listed an incorrect facsimile number, which has since been replaced. The ACMA notes that the fax number used by the complainant (that was listed on the complaint form that he found on the internet), is the same as the number that was listed on the CRA website – 0293675370.[4]

The licenseesubmits, however, thatthe form used by the complainant was ‘out of date’ and ‘does form any part of the 2Day FM website or 2Day FM’s online electronic complaints handling process’. In light of this, the licensee submits that the complaint was ‘made outside of the complaints handling process’ and therefore does not constitute a valid code complaint.

The ACMA does not accept this argument. Regardless of how the complainant obtained that number, whether it was by accessing the CRA website or by way of using a search engine such as Google, the fact is the number has been held out to the public by the licensee as the licensee’s contact point for complaints, and was being held out as such at the time the complainant made his complaint.

Having regard to the available information, including the facsimile activity record, the ACMA is of the view that the licensee has not met its complaints handling obligations under the Codes.

Accordingly, thelicensee breached clause 5.5 of the Codes.

Licensee’s response to Preliminary Finding

The license submitted that it does ‘not accept the conclusion reached by the ACMA in the report that 2Day FM is in breach of clause 5.5 of the Codes’.

In relation to the validity of the complaint, the licensee submitted:

[I]ncluded with your correspondence of 14 June 2012, some 4 months after the investigation commenced, is a signed version of the complaint which you note the complainant provided to the ACMA on the previous day. It is certainly curious that the signed complaint is provided at a stage where the ACMA is close to issuing its final investigation report. Indeed, it would be open to speculation that the defence in the complaint was only recently cured.

In the absence of information to the contrary, on balance the ACMA is bound to accept the document at face value.

The licensee also submitted:

Whilst [the licensee] acknowledged in the early stages of the investigation in its letter to the ACMA dated 14 February 2012 that it may have been reasonable to assume that the complainant’s fax was received, it was made clear in that correspondence that the actual receipt of the fax had not been confirmed and could not be confirmed. As such, it remains inconclusive that the fax was actually received by the licensee.

On the basis of the information before it and in the absence of any information to the contrary, it is reasonable for the ACMA to find that the fax transmission was received by the licensee, taking into account the information before it, including:

  • fax transmission receipt number
  • concession by the licensee that the number is registered to the licensee, and was the number listed at the time on the CRA website for receiving complaints
  • Further concession by the licensee that ‘it is reasonable to assume that ... the facsimile was received by us and inadvertently misplaced and/or discarded...’ [emphasis added by the ACMA]

The licensee submitted:

The complainant’s facsimile activity report appears to relate to the year 2007, not 2011 which hardly lends great evidential weight that the transmission actually occurred on the date asserted.

The ACMA does not find this argument persuasive. The date ‘23 November’ is evident on the document. Thecomplainant has confirmed that when there is a power failure the machine defaults back to 01/01/07. In this case the day and month were reset, and not the year.[5] The ACMA accepts the complainant’s explanation for this irregularity, and accordingly is satisfied that the transmission of the facsimile occurred on 23rd November 2011.

...[T]he ACMA can only investigate the licensee’s alleged non-compliance with clause 5.5 of the Codes if (a) there exists a valid complaint; (b) the complaint was received by the licensee; (c) the licensee failed to respond to the complaint; and (d) the complainant notifies the ACMA of the licensee’s failure to respond.

...

[W]ith respect to (a) the complaint cannot be characterised as a ‘complaint’ for the purposes of clause 5.1(a) of the Codes because it was not signed by the complainant; and that in regard to (b) it cannot, and has not been, conclusively established that the ‘complaint’, even if it were valid, was actually faxed by the complainant and received by the licensee. ...

[I]t follows that the ACMA is precluded from determining that the licensee was in breach of clause 5.5 of the Codes as a consequence of its ‘investigation’. The ability to conduct an investigation in the first place was absent.

The ACMA, in exercising its administrative powers and statutory functions under Part 11 of the BSA is required to make findings of fact. Accordingly, the question of whether a complaint is valid is a question of fact, based on logically probative information. Taking into account the above reasoning, the ACMA finds that there is sufficient logically probative information to find that the complaint is a valid complaint under s.148 of the Broadcasting Services Act 1992, and accordingly the ACMA commencedan investigation under section 149.

Accordingly, the licensee is in breach of clause 5.5 of the Codes.

ACMA Investigation Report – Kyle & Jackie O Breakfast Show broadcast by 2DAY on 22 November 2011 1

[1] The Austereo network provided submissions on behalf of the licensee.

[2] Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.

[3]Provided to the ACMA by the complainant on 13 June 2012.

[4]Licensee’s email to the ACMA dated 6 June 2012.

[5] Email dated 25 June 2012.