Investigation Report No. 2516
File No. / ACMA2010/2247Licensee / Austereo Pty Ltd
Station / 3FOX Melbourne
Type of Service / Commercial Radio
Name of Program / Hot 30 Countdown
Date of Broadcast / 6 October 2010
Relevant Code / Clauses 1.3(a) and 5.5 of the Commercial Radio Australia Codes of Practice 2010.
Date Finalised / 11 April 2011
Decision / No breach of clause 1.3(a) (generally accepted standards of decency)
No breach of clause 5.5 (complaints handling)
The complaint
The Australian Communications and Media Authority (the ACMA) received a complaint regarding content broadcast during the program Hot 30 Countdown on 6 October 2010 by the licensee of 3FOX, Austereo Pty Ltd.
The complainant alleged that a song broadcast by the licensee contained vulgar language which was inappropriate for children.
The complaint has been assessed in accordance with clauses 1.3(a) [generally accepted standards of decency]and 5.5 [complaints handling] of the Commercial Radio Australia Codes of Practice 2010 (the Codes).
The program
Hot 30 Countdown is broadcast on weekdays between 7.00 pm and 10:00 pm on FOX FM in Melbourne and is presented by Charli Delaney and Chris Page. The program format includes a music countdown where listeners vote to determine the evening’s play list, prize giveaways and interviews with musicians and other celebrities.[1]
On 6 October 2010 at 7.46pm, Chris Page announced a song on the Hot 30 Countdown as “Bliss N Eso at number 23”. The song contained the following lyrics:
And from the highest heights mother f (bleep) I jump…
Assessment
The assessment is based on the CD recording of the broadcast provided to the ACMA by the licensee, as well as submissions provided by the complainant and licensee. Other sources are identified where relevant.
Complainant’s submissions
The complainant submitted[2] to the licenseethat:
My 9 year old and I were listening to 101.9 when an inappropriate song came on at approx. 7.45pm. Surely, if you had to play these songs it would be after midnight. The short time that we listened to it before changing the station was full of vulgar language – F WORDS. 101.9 was a station I grew up listening to but songs like this weren’t played or were beeped or cut out. They weren’t played by anyone with some class. The song is offensive to everyone I know and I request you don’t play it and promote such vulgar content.
Licensee’s submissions
The licensee submitted in its response[3] to the complainant that:
…
The songs we play that form part of the Hot 30 countdown, a national countdown show, are voted for by listeners.
Unfortunately, you have not stated the song title or artist which makes it difficult to confirm what inappropriate language you are referring to. However, please know that FOX FM always ensures the radio edit of a song is played on air, this means that the songs we play are censored and the offensive language is taken out.
I am very sorry if you were offended by the lyrics of one of the songs on the Hot30. Unfortunately, with such a broad listening audience it is sometimes difficult to achieve consensus and lyrics that may appeal to some listeners may not appeal to others. We truly regret any concern you felt when listening to the Hot 30.
…
‘Ordinary, reasonable’ listener test
In assessing content against the Codes, the delegate considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.
Australian Courts have considered an ‘ordinary, reasonable’ listener 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[4].
The delegate asks, what would the ‘ordinary, reasonable’ listener have understood this program to have conveyed? It considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).
Once this test has been applied to ascertain the meaning of the broadcast material, it is for the delegate to determine whether the material has breached the Codes.
Issue 1:Generally accepted standards of decency
Relevant Code
Program Content and Language, including Sex and Sexual Behaviour
1.3(a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.
1.3(b) For the purposes of determining:
(i)the audience of the relevant program; and
(ii)the demographic characteristics of that audience,
regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).
Finding
The licensee did not breach clause 1.3(a) of the Codes.
Reasons
The ACMA considersthat clause 1.3(a) ‘generally accepted standards of decency’ must be considered in light of prevailing broadcast community standards, andthe term ‘accepted standards of decency’refers to the current consensus of recognised present day standards of propriety as opposed, for example, to content that is generally considered indecent or coarse. The average listener may accept that some material he or she considers indecent, would not be so judged by other sections of the community; and up to a point, those other groups have a right to have such material broadcast in programs to which they listen.
In this case, the word complained of in the song lyrics was edited out with a ‘beep’. As the actual ‘F’ word was not broadcast the delegate considers the ordinary reasonable listener would not have understood the lyrics to include any offensive words.
Given the first letter ‘F’ was broadcast and that beeps are known to mask indecent language,some listeners might have been able to infer that the original lyrics contained the ‘F’ word.
However, as the actual ‘F’ word was not broadcast, the delegate finds that the broadcast did not contain material that could offend generally accepted standards of decency.
Issue 2: Did the licensee conscientiously consider the complaint?
Relevant Code
Advice in Writing
5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 days, the licensee must, in any event, acknowledge receipt of the complaint within 30 days and provide a final reply within 45 days of receiving the complaint.
Complainant’s submissions
The complainant submitted that she supplied sufficient information for the licensee to respond to the complaint.
It is noted that the complainant sent a ‘Listener Complaint Form’ dated 7 October 2010 to the licensee which provided the following information:
Name of Station: 101.9
Name of Program: Top 30
Time of Broadcast: 7.45pm
Date of Broadcast: 6/10/10
Complaint Issue: Inappropriate language and content for timeslot
Licensee’s submissions
The licensee submitted that:
…As the Codes do not define “conscientiously” or “substantively”, for the purposes of the investigation response we rely on the definitions provided by the Macquarie English Dictionary (2nd Edition):
Substantive: Relating to the substance, or essence of a matter.
Conscientious: Controlled by or done according to conscience; scrupulous.
The subject of the complaint is that the complainant was offended by the language used in a song broadcast on 3FOX during the “Top 30” on 6 October 2010 at 7.45pm. We take this to be the “Hot 30 Countdown” broadcast on 3FOX weeknights from 7.30pm-10pm.
…
Notwithstanding that we were unable to identify the song to which the complainant was referring, we still addressed the Codes related matter raised in the complaint, i.e. inappropriate language broadcast on 3FOX. We stated that 3FOX always ensures that the radio edit of a song is played on-air and that the offensive language is removed. As we were unable to identify the song to which she was referring, we were unable to elaborate on her specific complaint, however as we addressed the Codes issue raised we submit that the response was substantive.
Although we were not obliged to, we also apologised to the complainant if she was offended by any lyrics that she may have heard. While we submit we have not breached clause 5.5, as you can appreciate, it is difficult to conscientiously consider the complaint if the subject matter of the complaint cannot be identified.
…
In an additional submission[5] to the ACMA, the licensee submitted that:
The complainant herself stated that “101.9 was a station I grew up listening to but songs like this weren’t played or were beeped or cut out” [emphasis added]. There is a clear implication in these words of the complainant that the FOX FM song she was complaining about was not beeped, as songs were when she was growing up. For this reason, we did not think the song the complainant was referring to could be the song by Bliss N Eso as the “F” word was bleeped when FOX FM played that song.
The licensee submitted that it searched for another song which the complainant may have found offensive, however, stated that it was extremely difficult to guess what song might have offended the complainant in a situation where the song’s title and artist was not provided:
We spent two hours listening to FOX FM broadcasts on various days at and around the times the complainant provided to us in order to find the correct song…contrary to the ACMA’s finding, we submit that we were careful in our consideration of the complainant’s concern and we spent a great deal of time investigating it.
The licensee submitted that notwithstanding the above:
…it still addressed the Codes related matter raised in [the complainant’s] complaint, ie inappropriate song lyrics. We stated that FOX FM ensures that the radio edit of a song is broadcast and that the offensive language is removed. We also apologised if the complainant was offended by any song lyrics she heard on FOX FM…
…Arguably the exact song the complainant was concerned by isn’t even particularly relevant; her issue was that she thought some song lyrics were vulgar and inappropriate. We responded to this issue by stating that we play the radio edit of songs and apologising if she was offended by any lyrics she heard on FOX FM. Our response addressed the essence of [the complainant’s] complaint.
Finding
The licensee did not breach clause 5.5 of the Codes.
Reasons
The delegate accepts, on the basis of the additional information provided by the licensee and its rationale for excluding the song in question that despite its failure to identify the specific material, there is insufficient evidence to conclude that the written complaint was not conscientiously considered by the licensee. Accordingly, the licensee has not breached clause 5.5 of the Codes.
ACMA Investigation Report –Hot 30 Countdown broadcast by 3FOX on 6 October 20101
[1]
[2] Listener Complaint Form dated 7 October 2010
[3] Letter dated 15 October 2010
[4]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167
[5]Letter dated 30 March 2011