Investigation Report No. 2859
File No. / ACMA 2012/1126 – PJ12/15Licensee / ARN Broadcasting Pty Ltd
Station / 3KKZ (Gold 104.3)
Type of Service / Commercial Radio
Name of Broadcast / Down Downby Status Quo (2012)
Date of Broadcast / 11 July 2012
Relevant Legislation/Code / Section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012
Clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011
Clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
Investigation conclusion
No breach of section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012and as a consequence, no breach of the licence condition at clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.
No breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011.
The complaint
On 16 August 2012, the Australian Communications and Media Authority (the ACMA) received a written complaint about Down Down by Status Quo (2012) broadcast by various licensees within the Australian Radio Network (ARN) including 3KKZ (Gold 104.3) in Melbourne.
The complainant alleged that on 11 July 2012, ARN Broadcasting Pty Ltd, the licensee of 3KKZ broadcast ‘a 3 minute Coles Supermarkets Jingle disguised as a song’ when paid-for advertisements 'must be clearly aired as such' and 'not disguised as content'.
Integrated advertising
Long-form musical advertisements are a relatively new innovation in radio advertising. They are a form of integrated advertising.
Having regard to the objectives of the Broadcasting Services Act 1992 (the Act)[1], in the exercise of its functions (including those to regulate broadcasting services and to monitor compliance with codes of practice)[2] the ACMA will generally aim to facilitate innovation in broadcasting, but in a manner that also pays proper regard to relevant community standards.
In this regard, the ACMA's review of the commercial radio standards noted some community concerns with integrated advertising.[3] Listener research indicated that integrated advertising could be difficult for listeners to distinguish as advertising.[4] However, the ACMA rejected calls to prohibit such advertising or regulate it differently to the more traditional 'spot' advertisements on radio.[5] The ACMA also confirmed findings that many listeners agree that integrating advertising with other program content on commercial radio is acceptable.[6]
In undertaking this investigation, the ACMA has remained conscious of the need to balance the regulatory requirements that all radio advertising be sufficiently distinguishable with the industry's drive for innovation in radio advertising in an increasingly competitive market.
The investigation
This investigation considers whetherARN Broadcasting Pty Ltd, the licensee of 3KKZ (the licensee) broadcast an advertisement which:
was distinguishable from other program material during the Mornings with Craig Hugginsprogram on 11 July 2012, as required by the Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the Advertising Standard 2012)
was not presented 'as news programs or other programs' during theMornings with Craig Huggins program on 11 July 2012, as required by clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes).
Under section 149 of the Act, the ACMA must investigate complaints about compliance with licence conditions. Compliance with the Advertising Standard 2012 is a condition of holding a commercial radio broadcasting licence.[7]
The complainant’s allegation that the licensee broadcast an advertisement 'disguised as content' raises compliance with the Codes. As a result, the ACMA has also decided to investigate the licensee's compliance with clause 3.1(a) of the Codes under section 170 of the Act.[8]
The program
TheMornings with Craig Huggins program is described on the 3KKZ website as:
Huggy rolls out '10 In a Row' every hour through the 'No Repeat Workday', starting with the 'Classic Countdown' featuring 10 great classics from one year. At midday he opens the buffet for the '80's Lunch' cooking up some great memories from a fantastic decade of hits.[9]
3KKZis a ‘Classic Hits’ station. The 'Classic Hits' brand is described on the ARN website in the following way:
Classic Hits is the great all-rounder, delivering the perfect combination of music, chat and intelligent fun for 40-54 year olds who live in the now, but like to stay connected with the past.
The Classic Hits Network is all about Good Times & Great Classic Hits and broadcasts across Australia via WSFM 101.7 Sydney, Gold 104.3 Melbourne, 4KQ 693AM Brisbane & Cruise 1323 Adelaide.[10]
Assessment
This investigation is based on the following assessed material:
a recording of the Mornings with Craig Huggins programof 11 July 2012
submissions from the licensee, dated 12 September 2012 and 9 January 2013
publicly available information.
Issue 1: Compliance with section 7 of the Advertising Standard 2012
Relevantsections of the Advertising Standard 2012
The operative provision of the Advertising Standard 2012 is section 7:
7Distinguishing Advertisements
Advertisements broadcast by the licensee must be presented in such a manner that the reasonable listener is able to distinguish them, at the time of broadcast, from other program material.
Section 6 of the Advertising Standard 2012 provides the following relevant definitions:
6Definitions
In this standard:
advertisement means material broadcast:
(a)which draws public attention to, or promotes directly or indirectly, an organisation, product, service, belief or course of action; and
(b)for which consideration has been provided by, or on behalf of, an organisation or supplier of the product or service, to a licensee, a presenter, or an associate of a presenter.
consideration means any money, service, benefit or other valuable consideration that is directly or indirectly paid, promised, charged or accepted for material that is broadcast, or is to be broadcast, but does not include a product or service provided free to a person solely for the purpose of having the product or service reviewed.
Complainant’s submissions
The complainant submits that on 11 July 2012, 3KKZ broadcast 'a 3 minute Coles Supermarket jingle disguised as a song' and accordingly that the advertisement was not clearly distinguishable as an advertisement.
The complainant noted that the version of Down Downby the English band Status Quo played by the licensee was commissioned by Coles Supermarkets (hereafter the ‘2012 version of Down Down’) and that the licensee had been paid by Coles Supermarkets to broadcast the2012 version of Down Down.
Licensee’s submissions
On 12 September 2012, the licensee provided the ACMA with a copy of the relevant broadcast, as well as written submissions. In its submissions, the licensee argued that the average 3KKZ listener, who is 40+, would be aware of Status Quo and the original version of Down Down and would immediately be able to spot the difference between the 2012 version of Down Down and the original. The licensee also submitted that 40% of the words had been changed for the 2012 version of Down Down which made it significantly different from the original, and would easily allow the average listener to differentiate it. The licensee also referred to the television campaign for Coles Supermarkets that was concurrently launching across all free-to-air television networks with 'a massive campaign'. The licensee argued this would help to further identify the 2012 version of Down Down as an advertisement in the average 3KKZ listener's mind.
The licensee broadcast one announcement after the 2012 version ofDownDown. The licensee submitted that the accompanying announcement was intended to ensure the 2012 version of Down Down was identifiable as a ‘commercial’ because the duration of the advertisement (3 minutes 54 seconds) meant it could not be played with other advertising.
The licensee noted that relevant station staff were instructed on the process required for pre and post tagging of the 2012 version of Down Down and were given suggestions on what to say when making those announcements.
Finding
The licensee did not breach section 7 of the Advertising Standard 2012 in its broadcast of theMornings with Craig Huggins program on11 July 2012, as the 2012 version of Down Downwas presented in such a manner that the reasonable listener would have been able to distinguish it from other program material. As a consequence, the licensee did not breach the licence condition at clause 8(1)(b) of Schedule 2 to the Act.
Reasons
In assessing the broadcast by 3KKZ of the 2012 version of Down Down against the Advertising Standard 2012, the ACMA must determine:
- whether the 2012 version of Down Down was an advertisement under the Advertising Standard 2012; and if so,
- whether it was presented in such a manner that the reasonable listener was able to distinguish it, at the time of broadcast, from other program material.
1. Was the 2012 version of Down Down an advertisement under the Advertising Standard 2012?
Forthe broadcast of the 2012 version of Down Downto be an advertisement under the Advertising Standard 2012, the ACMA must determine that:
the 2012 version of Down Down drew public attention to or promoted Coles Supermarkets; and
consideration was provided by, or on behalf of, Coles Supermarkets to the licensee, presenter, or an associate of the presenter for the broadcast of that material.
The 2012 version of Down Down was broadcast, in full, at approximately 10.52 am on 3KKZ.
Public attention or promotion
The licensee submits that the broadcast of the 2012 version of Down Down ‘is a commercial for Coles Supermarkets which uses a re-recording of Status Quo’s 1974 hit Down Down’. The ACMA considers that the 2012 version of Down Down expressly promoted Coles Supermarkets through references to:
the slogan 'down down prices are down'
the 'big red hand' branding (which is the hook of this particular campaign)
the company 'Coles'.
The lyrics of the 2012 version of Down Down are at Attachment A.
Consideration
While the ACMA is not aware of the amount of consideration paid, the licensee confirmed in its submissions of 12 September 2012 that it had 'won' a proportion of Coles Supermarkets' radio advertising budget for the campaign commencing 11 July 2012. The campaign included 'limited plays of the full length version of the re-recorded commercial'.[11]
On this basis, the ACMA considers that the broadcast of the 2012 version of Down Down was an advertisement under the definition in the Advertising Standard 2012.
2. Was the advertisement presented in a manner that the reasonable listener was able to distinguish the advertisement, at the time of broadcast, from other program material?
‘Ordinary, reasonable’ listener test
In assessing content against the Advertising Standards 2012, the ACMA considers the meaning conveyed by the relevant broadcast 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[12].
For the purposes of the Advertising Standard 2012, the attributes of the reasonable listener of a commercial radio station are considered the same as those described above by the courts.
How advertising material may be distinguishable to the reasonable listener
Whether an advertisement is distinguishable to a reasonable listener from other program material, is assessed according to a range of factors including content, style, tone, scripting and the placement of the advertisement.[13]
Research published in 2010 on the ability of commercial radio listeners to distinguish advertising from other program material suggests that there is some uniformity in the particular cues and signals that listeners use to determine whether material is advertising.[14] The cues and signals include:
mentions of a brand or product name and/or repetition of a brand or product name
provision of company contact details
highly or overly detailed discussions of products and services
overly positive and unbalanced descriptions and discussions
having a scripted or artificial feel associated with discussions.[15]
The timing of these elements is also relevant to the assessment of whether an advertisement is distinguishable 'at the time of broadcast' from other program material.
How was the advertisement presented on 3KKZ?
On 11 July 2012, the licensee presented the advertisement in the following manner:
The full length version of the 2012 version of Down Down was broadcast during the Mornings with Craig Hugginsprogram.
The advertisement itself includes lyric references; ‘down down prices are down’, ‘savings’ and ‘big red hand’ as well as a single reference to ‘Coles’, which occurs in the final verse. The lyric structure, music, guitar riffs and performing artist are the same as the original version of Down Down.[16]
The advertisement was immediately followed by this announcement:
Good times, great classic hits Gold 104.3. Do you think Coles could be the first supermarket to make it onto the charts, possibly with that track. Coles and Status Quo have teamed up and re-recorded that classic hit Down Down, maybe a Grammy Award awaits them.
The ACMA notes the licensee’s submissions that without the accompanying announcements, the 2012 version of Down Downwas distinguishable from other program material, because:
Over 40% of the lyrics have been changed from the original version, making it significantly different from the original.
The average 3KKZ listener who is also familiar with the original version of Down Down would immediately spot the difference.
The average listener of 3KKZ would recognise this version from television advertising for Coles Supermarkets.
As discussed above, Australian Courts have identified the characteristics of the reasonable listener. The ACMA takes the reasonable listener of commercial radio to be generally familiar with, and aware of, radio advertising but without special knowledge of particular advertising campaigns. Therefore, in the assessment of the 2012 version of Down Down the ACMA did not consider the listener's familiarity with other advertising for Coles Supermarkets, such as the television advertising.
The licensee relies on the ability of the listener to spot the difference between the 2012 version of Down Downand the original version of Down Down. However, the Advertising Standard 2012 requires the reasonable listener to be able to distinguish the advertisement from other program material rather than to identify it as an edit, or a different version, of thesame song.
The licensee stresses the importance of lyric changes between the original version of Down Down and the 2012 version of Down Down. The ACMA has consideredthe lyrics of the 2012 version of Down Down, in so far as they are relevant to whether the reasonable listener was able to distinguish the advertisement from other program material. The combination of the advertisement's placement, style, tone and content (including the lyrics) affects the reasonable listener's ability to distinguish an advertisement from other program material.
The ACMA’s view on whether the advertisement was presented in a manner that the reasonable listener was able to distinguish the advertisement, at the time of broadcast
The advertisement in and of itself
In the view of the ACMA, the reasonable listener is less likely to be able to distinguish an advertisement that takes on the characteristics of the surrounding program material, in this case music programming.
The reasonable listener of commercial radio is familiar with a short form and scripted format for advertising material. This type of 'spot' advertising is used extensively on 3KKZ, and particularly within theMornings with Craig Hugginsprogram. The majority of advertisements within this program have a duration of 30 seconds and are broadcast in groups surrounding news and information breaks. The broadcast of the 2012 version of Down Down was very different to these usual 'spot' advertisements, given that it was broadcast adjacent to music programming, separate from other advertising, and ran for almost four minutes.
In the present circumstances, the advertisement by itself had a greater likelihood of being indistinguishable from music programming in circumstances where it appeared alongside 'classic hits' in a no repeat format. The length of this advertisement is similar to that of a 'classic hit' song. Further, the 2012 version of Down Down is heavily based on an existing 'classic hit' song, is performed by a 'classic hit' band, and was broadcast among other 'classic hits' in a no repeat format. All these factors contributed to making it difficult for the reasonable listener to distinguish the 2012 version of Down Down as an advertisement. The lyric references in the advertisement to ‘down down prices are down’, ‘savings’, ‘big red hand’ and ‘Coles’ were insufficient to outweigh the above factors. The lyrics alone were not enough to allow the reasonable listener to distinguish the advertisement as such, even if the reasonable listener was also familiar with the original version of Down Down and aware of the television advertising for Coles Supermarkets.
The ACMA is of the view that the 2012 version of Down Down (in and of itself) presented alongside 'classic hits' was not distinguishable as an advertisement to the reasonable listener of commercial radio.
Surrounding announcements
While the broadcast of the 2012 version of Down Down in and of itself was not distinguishable as an advertisement, the broadcast of surrounding announcements could have made it so.
The licensee advised that relevant station staff were instructed to broadcast announcements with the advertisement, suggesting that the licensee also anticipated doubt about the ability of the reasonable listener to distinguish the 2012 version of Down Down.
On 3KKZ, one accompanying announcement was broadcast after the advertisement (set out above). In this announcement, the 2012 version of Down Down was referred to as 'that classic hit' with the presenter suggesting it could 'make it onto the charts' and 'maybe a Grammy Award awaits'. The announcement did link the 2012 version of Down Down with Coles Supermarkets by the reference to 'Coles and Status Quo have teamed up and re-recorded that classic hit', although,it did not explicitly state that the 2012 version of Down Down was an advertisement for Coles Supermarkets. The ACMA accepts that the broadcast would have, in practice, provided a sufficient basis for the reasonable listener to understand that Coles Supermarkets had paid the licensee to broadcast the 2012 version of Down Down, specifically because of:
the proximity of the announcement that followed the advertisement; combined with
the cues and signals present in the advertisement.
It would have been preferable for the accompanying announcement to precede the advertisement, as the reasonable listener would have found it easier to discern the 2012 version of Down Down as an advertisement in such a case.[17] However, even in the absence of a preceding announcement, on balance, the ACMA is satisfied that the reasonable listener would have been able to distinguish the 2012 version of Down Down as an advertisement.