Investigation Report No. 2624
File number / ACMA2011/1301Licensee / Sunshine FM Radio Association Inc.
Station / 4SFM, Nambour
Type of service / Community radio
Dates of broadcast / 6, 10 and 27 July 2011
Relevant legislation / Clauses 9(1)(b) and 9(2)(b) of Schedule 2 to the Broadcasting Services Act 1992
Date finalised / 17 November 2011
Decision
- Breach of clause 9(1)(b) [broadcasting advertisements] of Schedule 2 to the Broadcasting Services Act 1992 on 10 July 2011;
- No breach of clause 9(1)(b) [broadcasting advertisements] of Schedule 2 to the Broadcasting Services Act 1992 on 6 and 27 July 2011; and
- No breach of clause 9(2)(b) [continue to represent the community interest] of Schedule 2 to the Broadcasting Services Act 1992.
The complaint
On 18 July 2011, 10 and 11 August 2011, the Australian Communications and Media Authority (the ACMA) received complaints alleging that Sunshine FM Radio Association Inc., the licensee of 4SFM, was not complying with its licence conditions under the Broadcasting Services Act 1992 (the Act)because it broadcast advertisements, exceeded the five-minute per hour limit on sponsorship announcements and was not continuing to represent its community interest.
The service
4SFM is the licensee of community radio broadcasting licence,SL 1150113. 4SFM is licensed to represent the mature age community interest of the Nambour RA2 licence area, which covers part of the Sunshine Coast, including Bribie Island, Caloundra, Mooloolaba and Nambour. 4SFM commenced its service on 9 December 2002. Its licence was last renewed on 13 November 2007 and is due to expire on 8 December 2012.
Profile of the Nambour RA2 licence area
At the 2006 Census[1], the Nambour RA2 licence area had a population of 241,906 people, with 37.6% of the population aged 50 years or over.Of those aged 50 or over in the licence area:
- 36% are aged 50-59 years;
- 30% are aged 60-69 years;
- 21% are aged 70-79 years; and
- 12% are aged 80 or over.
The Nambour RA2 licence area covers part of the Sunshine Coast Regional Council. The Council has noted that the ‘age structure of the Sunshine Coast is significantly older than for Queensland’ with the ‘older age profile of the region [reflected] in the high number of retirees and baby boomers who have moved to the region’, with the trend projected to continue.[2] The implications of the ageing population will include ‘increased expenditure associated with income support, adequate provision of health and disability services […] increased need for family and community care […] increased need for health hubs, and the number, type and location of relevant services’.[3]
The Nambour RA2 licence area is served by a number of radio broadcasting services, including three commercial radio stations, three national radio stations and two community radio stations.
Assessment
The assessment is based on:
- written submissions from the complainant received on 18 July 2011,
10 and 11 August 2011, including CDs of sample recordings to support their complaint; - written submissions from the licensee received on 15 August 2011,
7,13, 15 and 25 October 2011; and - CD copies of the relevant broadcasts provided by the licensee of:
- itsMusic For Cruizin’ programbroadcast on 10 July 2011;
- its interview with [DW] broadcast on 6 July 2011; and
- itscommunity service announcements as at 27 July 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 […]
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 18 July 2011, the complainant submitted to the ACMA that:
[The first program on the CD enclosed with the complaint] is a 57 minute music program promoting the sale (via the internet) of compilation CD’s entitled “Music ForCruisin”. Details of the intent of this promotion can be verified by reference to the following website: [web address provided]. During this 57 minute program no mention is made that the Promoter is a “station sponsor” and the whole program would seem to exceed more than the Mandatory 5 minutes of paid announcements per hour applying to community radio.
On various occasions Community Service announcements may also be in breach of relevant regulations by promoting Profit-making activities and/or commercial venues for functions.
[…]
Recently it has been reported that the Association President has been “interviewed” on air discussing his activities in regard to time-sharing of motor-home facilities for tours. This may also breach the broadcast act provisions in regard to Community Radio.
On 10 August 2011, the complainant further submitted that:
THE ENCLOSED COMPACT DISC IS AN OFF·AIR RECORDING OF A CERTAIN "INTERVIEW" AND 3 EDITIONS OF "SPONSORSHIP" ANNOUNCEMENTS IN RELATION TO AN EXISTING TIME-SHARE ARRANGEMENTS FOR THE SHARED OWNERSHIP AND USE OF A MOTOR-HOME.
ACCORDING TO THE SUBJECT ANNOUNCEMENTS THIS FACILITY IS OPERATED BY THE [INCUMBENT], PRESIDENT [DW].
On 11 August 2011, the complainant provided a copy of an authority to broadcast form for the sponsorship arrangement between ‘R V Motor Homes’ and 4SFM.
Licensee’s submissions
On 15 August 2011, the licensee submitted to the ACMA that,in relation to the Music ForCruzin’ program broadcast on 10 July 2011:
The program in question is 'Music for Cruzin' presented by4SFM Station co-founder [GW] (involved with Radio and Television for the past 57 years) and [BB], (recognised as one of Australia's most respected music historians in Australia over the past 60 years). They took great care when researching and presenting this program.
From the outset their major concern was to ensure that they did not breach the act. More specifically they were very conscious of the restrictions with the advertising potential and actual advertising content. Their belief is that the program in its form does not breach the act in that they have not mentioned at any point that "CD's were available For Sale", nor at any time has there been mention of prices of any CD. Based on this premise they have, with all good intent, presented their program. As it stands our senior presenter [GW] is adamant that we are not in breach of the act.
In hindsight, the management of the station concede that clarification of the content should have been sought either by the ACMA or by the CBAA.
This program appears to tick all the boxes for good programming and will bring enjoyment for our listening audience. It has been decided that the program will go to air, however reference to [BB’s] website or any other reference to encourage listeners to purchase the "Music for Cruzin" CD's have been deleted.
In relation to community service announcements (CSAs) broadcast, the licensee submitted that:
The procedures that are used with all Community Service announcements at 4SFM are as follows:
Upon receipt of a request for airplay for a Community Service Announcement the request is scrutinised by the Community Service Announcement Supervisor.
When the announcement is cleared for airplay it is then sent to the Production Manager who also checks to ensure the details are suitable and acceptable under the Act.
If there is any doubt that the contents are incorrect then the request is either sent back to the author advising them that the content of the announcement falls outside what is permissible under the terms of a 'free Community Service Announcement'. They are then offered the opportunity to purchase sponsorship.
Generally the decision to accept or refuse an announcement is left to the CSA Supervisor and if needed the Production Manager. Both have lived on the Sunshine Coast and have a very good understanding of what is happening across the region.
If an announcement falls within a 'grey' area and the CSA Supervisor and the Production Manager are unsure of the content, the announcement is then forwarded to the Station Manager who will, after discussion with each manager, (and if needed after discussion with the organisation in question), make a decision to either accept or refuse the announcement.
If the announcement is rejected the organisation is then referred to the station's sales department[.]
In regard to the complaint, as outlined in your letter, this is a very rare event. The 4SFM regulations are stringently enforced and we do not believe that we have breached the act in this area.
After investigating all Community Service Announcements aired on or about the dates suggested, in review, there are two announcements that may be considered to fall outside the guidelines. […] However, following investigation, we are satisfied that both meet the required criteria for Community Service Announcements.
In its 15 August 2011 submission, the licensee included the following statement from its President [DW]:
[…] I have an interest in a joint-purchase motorhome on the Sunshine Coast. I coordinate the use of this vehicle on a voluntary basis and receive no financial benefit from this association. It is not "time-share" nor are any "tours" arranged as has been suggested. I was interviewed on "grey nomad" activities and reported on a recent trip we made around Australia.
The organisation - RV Share, previously sponsored the Station and originally provided the vehicle but it is now not operating. In retrospect, the offhanded referral at the time to the old website, may have been a mistake.
In its 7 September 2011 submission, the licensee included a further statement from its President [DW]:
The interview at 1000hrs on Wednesday 6th July, was designed as an information session relevant to our demographic - the "mature-aged" listener. The programme manager thought it would be of interest to report on our recent three months trip around Australia in a motorhome and to pass on some advice and hints to the large number of locals who are already grey nomads or intending to be. [JS] conducted the interview and asked towards the end, how we got into this venture.I did explain the joint-purchase scheme where like-minded families could get together to purchase a motorhome. I coordinate the scheduling of the use of our motorhome on the Sunshine Coast on a voluntary basis.
On 7 September 2011, the licensee submitted a description of the program in which the interview with DW was broadcast:
4SFM conducts a 'Magazine' style program Monday to Friday between 9am and noon. While the program is music based, the presenter conducts a number of short interviews with a broad range of guests whose activities are of interest to mature-aged listeners across the Sunshine Coast.
Interviews range from updates with local politicians (from each level of Government) who have an impact on the Sunshine Coast; to chats with people visiting the area who have a broad range of different and interesting activities.
On 13 September 2011, the licensee submitted further information from its President regarding sponsorship arrangements with RV Share:
In early 2009 a company in Newcastle, “Motorhome Lifestyle Consultancy” (principal [JM]) set up a joint-purchase motorhome scheme called RVShare. We were interested and I was asked if I could coordinate the Winnebago running on the Sunshine Coast. This was voluntary and I did it as I was one of the first “owners”.
The Company paid for sponsorship for the RVShare scheme on Sunshine FM between 14 Dec 09 to 15 Feb 10.
I travelled around Australia in the motorhome and was asked to do the live interview about “Motorhoming for grey nomads” on my return (which I did on 6 Jul 11).
[…]
In the meantime, the company, “Motorhome Lifestyle Consultancy” was closed down and the website for RVShare was removed.
The current owners on the Sunshine Coast hoped to buy out the motorhome and 4SFM ran a sponsorship announcement from 15 July to 26 July to see if there was someone else locally who would like to join us.
On 25 October 2011, the licensee provided additional information about the matter, stating:
The interview was considered to be in the community interest for mature aged listeners. It promoted only the concept of joint-purchase of motorhomes not one product over another as (to our knowledge) this is the only scheme of this type operating in Australia.
The contact phone number was given so listeners could obtain additional information to recommend the concept of joint-purchase not to sell a product (as no product was for sale). The website RVShare (which was closed shortly after), gave general information on motorhoming.
On 15 September 2011, the licensee submitted further information regarding the CSAs it broadcasts and clarified its arrangements with the Noosa Convertible Car Club:
With all our community service announcements, they are put to air at no charge to the client/organisation and each spot concluding with “Caring for our Community this is 104.9 Sunshine FM” or words to that [effect].
I confirm also that all paid announcements include ‘station sponsor’ or ‘our sponsor’or ‘at sponsor...’ at some point within the message.
With regard to the Noosa Convertible Car Club, the specific CSA Spots were all tagged correctly with “Caring for our community this is 104.9 Sunshine FM” and the extra spots that were paid announcements concluded with “station sponsor”.
The licensee provided a copy of its list of station sponsors with its submissions. It also provided copies of its Authority to Broadcast forms, outlining the sponsorship arrangements with RV Motorhomes and Noosa Convertible Car Club.
Finding
4SFM broadcast advertisements between 5.00 pm and 6.00 pmon10 July 2011.Accordingly, the licensee breached clause 9(1)(b) of Schedule 2 to the Act.
Reasons
It is a condition of all community broadcasting licences that the licensee must not broadcast advertisements.
What is an advertisement?
While the Act does not provide a definition for an ‘advertisement’, 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, acommercial 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 licence;
- community information material or community promotional material;
- material that promotes the licensee's service; 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 on advertising.
Review of the Music For Cruizin’ broadcast, 5:00 p.m. to 6:00 p.m.,10 July 2011
It is noted that the complainant framed their submission around 4SFM’s compliance with the licence condition limiting the broadcast of sponsorship announcements to five minutes per hour[6]. However, as the licensee has confirmed that the Music ForCruizin’ CD promoter was not, at the time of broadcast, a program or station sponsor, the broadcast cannot be considered a sponsorship announcement. Accordingly, the complaint is considered in relation to compliance with the licence condition prohibiting the broadcast of advertisements.
During the Music ForCruizin’ broadcast on 10 July 2011, the presenter discussed the various tracks played and provided historical or personal insight for each song. The broadcast also contained a number of community service announcements and tagged sponsorship announcements. However, throughout the broadcast, references were made to a particular product, the Music ForCruizin’ compilation CDs, as noted below:
… that’s what inspired me to compile my all time favourite songs onto a series of double CDs that I call Music for Cruizin’¸ a musical companion if you like for all us boomers on the road in our RVs hitting the highway to explore our great country.
[…]
Welcome back I’m [BB] and don’t forget to check out my albums on [BB’s website address].
[…]
… is one of those timeless tunes that you would expect to hear on one of my Music for Cruizin’ albums.
[…]
Here’s one of his most memorable hits, which you’ll find on my Rockin’ Down The Highway album.
[…]
… coming up after the break a song from a Scottish band that was a number one hit in 1994, another selection from my Music For Cruizin’ albums, which you’ll find on [website address provided].
[…]
… I rarely choose a cover version of songs for my Music ForCruizin’ albums unless it brings new life to the original. […] this is the version I chose for my Coastal Cruizin’ album that I’d like to play for you now.
[…]
I’m [BB], check out the entire Music ForCruizin’ catalogue on [website address provided]