3BBB - ACMA Investigation Report 2608

Investigation Report No. 2608

Investigation conclusion

The licensee of 3BBB, Ballarat Community FM Radio Cooperative Ltd:

• Breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [advertisements].

The complaint

On 21 June 2011, the Australian Communications and Media Authority (the ACMA) received a written complaint, alleging that Ballarat Community FM Radio Cooperative Limited, the licensee of 3BBB, was not operating in accordance with its licence conditions.In particular, the complainant expressed concern that 3BBB had broadcast sponsorship announcements in excess of five minutes per hour.

The service

3BBB commenced its service on 4 May 1986 and had its licence last renewed on 29 August 2011, with an expiry date of 28 August 2016. At renewal, 3BBB was licensed to meet the general needs of the community of Ballarat RA2 licence area, which includes the Local Government Areas of Ballarat, Bungaree, Buninyong and Sebastopol and parts of the Local Government Areas of Ballan, Creswick, Grenville, Ripon, and Talbot & Clunes in Victoria.

The program

The Community Voices program is broadcast Monday to Friday, between 9.00 am and 12.00 pm, providing the ‘latest community news and information’[1]. Each weekday broadcast has its own presenter and a focus on different community organisations. The Tuesday Community Voices program includes regular segments regarding:

-Ballarat Playgroup;

-Ballarat Community Health;

-Child and Family Services;

-Neighbourhood watch; and

-Lifeline Ballarat.

Assessment

The assessment is based on written submissions from the complainant, received on 21 June 2011, and the licensee, received on 19 July 2011, and a copy of the broadcast provided by the licensee on 19 July 2011.Additionally, a representative of the licensee, 3BBB’s Operations Manager, provided additional information to the ACMA during a telephone conversation on 3 August 2011.

Issue 1: Broadcasting advertisements

Relevant provisions of the Broadcasting Services Act 1992(the Act)

Schedule 2 – Standard conditions

Part 5 – Community broadcasting licences

9Conditions 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 …

[…]

(3)A community broadcasting licensee may broadcast sponsorship announcements on a particular community broadcasting service. However, they must not run in total for more than:

[…]

(b) in any other case – 5 minutes in any hour of broadcasting on that service.

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 submissions

On 21 June 2011, the complainant submitted to the ACMA that:

Radio station- Voice FM Community Radio Ballarat 3350 Vic.

Time [and] Date – Tue 21 Jun between 9am and 10am, the show Community Voices.

At this time 2 ladies were in the studio, doing a live interview, which is the normal thing for this time, but it was the subject that I bring into question..

The ladies were there to talk about a information night they were running… For woman to come along and learn about a business…

From the interview it sound very much like a party plan type of business to do with make-up, and the night would [inform] people about how to work for [themselves]…

This interview went for well over the 5 min’s allowed with in a hour..

It is my understanding that this interview should have come under the heading [of sponsorship]..

Could you review the log for this time slot and clear the matter up..

Licensee’s submissions

The licensee submitted to the ACMA on 19 July 2011 that:

During my [3BBB’s Operations Manager] discussions with […]our volunteer presenter for Tuesday’s Community Voices, she advised that she had arranged the interview as she believed that the women involved would be informing people about a workshop to empower women in their endeavours to return to work. She also believed that if she didn’t discuss prices that wouldn’t constitute a breach and that the interview only mentioned a cost of $5 which was for lunch.

[…]

[The presenter] wasn’t aware that prior to my going on holidays I had arranged for sponsorship paperwork to be sent to “[A]” [one of the interviewee’s] as she was interested in arranging some spots to promote a function she had arranged for her new business and also for her husband who was interested in a package to promote his new business repairing and servicing mobility scooter’s in people’s homes.

I must admit that I haven’t listened to the whole interview. Once I heard one of the guests say “we have started up a new business”[.] I’ve just completed the process of copying the hour for your investigation and will leave the determination as the whether it is an “incidental” breach to your investigators.

The licensee’s submission included a copy of the broadcast from 21 June 2011, from 9.00 am to 10.00 am.

On 3 August 2011, a representative[2] of the licensee confirmed that, at the time of the interview, the business mentioned during the interview, Swiss Botanical Skin Care and Make-up Range, was not a station sponsor. Subsequent to the broadcast of the interview, however, the business bought 21 sponsorship spots for the period 23 – 27 June 2011.

Finding

The delegate finds that the licensee broadcast an advertisementduring the Community Voices program on 21 June 2011, between 9.00 am and 10.00 am. Accordingly, the licensee is in breach of clause 9(1)(b) of Schedule 2 to the Act.

Reasons

It is noted that the complainant framed their submission around 3BBB’s compliance with the licence condition limiting the broadcast of sponsorship announcements to five minutes per hour[3]. However, a review of the broadcast indicates that, as the interview identified by the complainant was not tagged, and as it has been confirmed that the company mentioned during the interview was not, at the time of broadcast, a station sponsor,the broadcast cannot be considered a sponsorship announcement. Accordingly, the complaint must be considered in relation to compliance with thelicence condition prohibiting the broadcast of advertisements.

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 of ‘advertisement’. However, the High Court has viewed 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...[4]

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

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.[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 the licence;
• community information material or community promotional material;
• material that promotes the licensee’s services; 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 of advertising.

Assessment of the recording

A review of the relevant broadcast indicates that the licensee broadcast promotional material which did not fall within one of the categories listed above, andis therefore considered to be an advertisement.

The presenter interviews ‘A’, a representative of Swiss Botanical Skin Care and Make-up Range, between 9.19 am and 9.38 am[6]. During the first part of the interview, the discussion focuseson how women in the local Ballarat area can empower themselves through small business opportunities. The interview discusses issues that confront women in the workplace, such as long term non-participation as a result of staying at home with children, and provides advice on strategies that can help women gain the confidence they require. For example, during the interview, A states:

A lot of women lack self esteem and confidence […] to go out and do something independently for themselves and secondly they’re afraid of the risks that maybe involved in starting up or conducting their own business.

[…]

Firstly, I suppose you’ve got to start with […] helping people build their confidence levels because that sort of thing to be able to stand up in front of people, that’s a learned skill and it’s something that anybody can do. But it’s all about starting at the start and getting down to basics and just helping people build their confidence levels.

However, the interview focuses on one particular business, the Swiss Botanical Skin Care and Make-up Range, in providing specific examples of how these outcomes can be achieved. For example, at the beginning of the interview,A states:

We’re launching a new business into the Ballarat community and we’re conducting an event on Monday night […] and it’s an event to launch this new and exciting Swiss Botanical Skin Care and Make-up Range whilst sharing it as an income opportunity for local women.

Throughout the interview, this business is the only one identified and it is emphasised as a model that empowers women. For example, during the interview,A states:

The beauty of our business […] is that we have a very supportive network of women around that help to encourage and nurture and inspire and motivate, as well as coach and teach all of the skills that are needed to conduct a successful business.

Furthermore, the interview covers the specific virtues of the Swiss Botanical Skin Care and Make-up Range, with A stating:

I’ve been in the makeup and skin care industry for more than 20 years in a variety of roles, in sales, in training and development, as well as makeup artistry, and it’s absolutely the best line of products that I’ve come across, so it’s my product of choice that I use professionally.

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

Interviews with subject matter experts are common to broadcasting and play a legitimate role in community broadcasting. However, care should be taken to ensure that discussions do not move from the general (for example, a DIY program that provides technical information about home improvements) to the specific (for example, the promotion of a particular product, service or organisation). Also, an interview is more likely to be characterised as an advertisement if the broadcaster has a financial or other arrangement with the expert being interviewed.[7]

While a discussion relating to running a small business could be considered as community information, the interview prominently features the benefits of a specific business, the Swiss Botanical Skin Care and Make-up Range. As the promotional material does not fall within any of the categories of material that are not taken to be advertisements under the Act, it follows that the interview is considered to be an advertisement, the broadcast of which places 3BBB in breach of its licence conditions.

It is noted that the licensee suggested in its 19 July 2011 submission that the advertisements may be considered as incidental accompaniment. 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.[8]

The information before the delegate indicates that, at the time of the interview, 3BBB was not receiving cash or in-kind payment for the broadcast of the promotional announcements. A formal sponsorship agreement was entered into following the interview.

In considering the first limb, it is noted that 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.[9]

In relation to 3BBB’s interview with arepresentative of the Swiss Botanical Skin Care and Make-up Rangebusinesson 21June 2011, the number and frequency of references to the specifics of the business do not make them a minor part of the interview. Additionally, the references to the business are deliberate and cannot be seen to be a ‘casual reference’.

Action taken

The licensee submitted to the ACMA on 19 July 2011 that in response to the complaint, it is:

• planning New Presenter Training and Skill Development Training;
• conducting a review of all current programs;
• organising mentoring and technical training for the Community Voices presenter;
• allowing the Community Voices presenter to continue in her role but suspending her from additional interviews other than regular community groups and not for profit organisations; and
• printing and highlighting a copy of the ACMA Sponsorship Guidelines for all presenters to refresh their understanding and responsibilities.

The ACMA considers these measures adequately address the compliance issues raised by the breach. The ACMA will continue to monitor 3BBB’s compliance.

Decision

I, Desa Bajic, Manager, Community Renewals and Investigations Section, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that thelicensee of 3BBB, Ballarat Community FM Radio Cooperative Ltd:

• Breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [advertisements].

Signed: Desa Bajic

dated this 31st day of August 2011

ACMA Investigation Report – Community Voices broadcast by 3BBB on 21 June 20111

[1] accessed on 1 August 2011

[2]The ACMA contacted 3BBB and spoke to 3BBB’s Operations Manager to clarify this issue.

[3]Clause 9(3)(b) of Schedule 2 to the Act.

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

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

[6]The interview is conducted in two sections – from 9.19am to 9.25 am, and 9.28am and 9.38am - with a music break in between.

[7]Community Broadcasting Sponsorship Guidelines 2008, page 9

[8]Community Broadcasting Sponsorship Guidelines 2008, page 5

[9]Community Broadcasting Sponsorship Guidelines 2008, page 7