Investigation Report No. 2710
File No. / ACMA2011/1832Licensee / Melbourne Community Television Consortium Ltd
Station / C31 – Melbourne, Victoria
Type of Service / Community Broadcasting – Television
Name of Program / All 4 Adventure
Date of Broadcast / 10 November 2011
Issue / Broadcasting advertisements
Relevant Legislation / Clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
Date Finalised / 9 March 2012
Decision / Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements].
The complaint
On 11 and 18 November 2011, the Australian Communications and Media Authority (the ACMA) received written complaints alleging that the licensee of C31 Melbourne, Melbourne Community Television Consortium Ltd (C31), had failed to comply with a condition of its community television broadcasting licence.
The complainants alleged that a program, All 4 Adventure, broadcast at 7:30pm on 10 November 2011, contained advertising material.
The service
C31 is the licensee of long-term community television broadcasting licence no. 1150808. C31 is licensed to represent the general community interest of the Melbourne TV1 licence area. C31 commenced its service on 1 August 2004 and its current licence is for the period from 1 August 2009 to 31 July 2014.
The program
All 4 Adventure is a program of approximately 21 minutes and 54 seconds in duration. It follows host Jason and ‘right hand man’ Simon[1] as they travel to remote parts of Australia. The episode in question follows Jason and Simon as they travel by 4WD, buggy and all-terrain vehicle (also known as a quad) to Wildfire Gorge in the Lorella Springs Wilderness Park in the Northern Territory.
Assessment
This assessment is based on written submissions from:
· a complainant dated and received by the ACMA on 10 November 2011 (Complainant 1);
· a complainant dated and received by the ACMA on 18 November 2011 (Complainant 2); and
· C31 dated and received by the ACMA on 5 December 2011, including a DVD copy of All 4 Adventure as broadcast on 10 November 2011, and on 8 March 2012.
Issue: Broadcasting advertisements
Relevant provision of the Broadcasting Services Act 1992 (the Act)
Schedule 2 - Standard conditions 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.
[...]
Part 5 - Community broadcasting licences
9 Conditions 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 […]
Complainants’ submissions
Complainant 1 states that:
[. . ] I was shocked by the blatant advertorial content [. . .]. The continual sponsor logos on their shirts and on screen, the continual reference to products by brand name and numerous personal validations of sponsored products was amazing.
Complainant 2 states that:
Recently while in Melbourne, we saw something that bothered us greatly on a program called All 4 Adventure, it was in the 19:30 slot on the 10th November. We watch Ch31 for the ‘real person’ content rather than blatant advertising and were sorely disappointed and maddened by the amount of sponsor promotion that took place in this episode, logos, biased recommendations and branding, branding, branding, exactly what we expect on commercial television (the reason we prefer not to watch it!) [. . .] Ch31 is all about the people, sure there’ll be new products and companies etc but not like this episode.
Licensee’s submissions
C31 states that:
The program All 4 Adventure is produced in the first instance for the Foxtel Aurora Community Channel. Although this channel represents itself as being a community service, it does not hold a community television licence and is therefore not bound by the advertising restrictions which apply to genuine community television licence holders. Consequently, people making programs for that channel can, and often do, include advertorial material in their programs.
When such a program is presented for a subsequent broadcast on C31, it is assessed to determine whether it is possible through editing to bring the content in line with the community television licence conditions. Some programs have advertorial content so intricately woven into them that transmission by a proper community television service is impossible. In the case of All 4 Adventure, the advertorial sections and in-program sponsorship acknowledgements are in discrete parts of the program which can easily be edited out without destroying the narrative flow of the programs. The producers of All 4 Adventure understand this situation, and have given permission for C31 to delete whatever material is necessary to enable the program to be broadcast by C31.
The standard length for an episode of All 4 Adventure prior to any cutting is 21’54” approx. Reference to C31’s As Run broadcast logs for 27 October and 3 November 2011 shows that the total program durations as broadcast for the first two episodes in this series of All 4 Adventure were 16’49” and 16’24” respectively. This demonstrates that it is regular practice to delete a substantial amount of material from the episodes prior to broadcast.
In the case of episode three, broadcast on 10 November 2011, an uncut version of the episode was broadcast erroneously. Examining the episode, the following deletions should have been made before transmission:
All 4 Adventure - Series 3, Episode 3 - Compliance cuts
Segment 2: Delete 1’48” to 3’20” - Tip of the Week breaker & discussion of “Long Ranger” fuel tanks. Cut = 1’32”
Segment 3: Delete 2’58” to 3’09” - Breaker endorsing “Waeco”. [Waeco Bush Cooking segment] Cut = 0’13”
Segment 4: Delete 0’06” to 2’00” - TJM Set-up segment. Cut = 1’54”
Delete 5’21” to 6’58” – [All 4 Adventure] Competition segment. Cut = 1’37”
Original duration: 21’54”
Total cuts: 5’16”
Duration after cuts: 16’38”
In subsequent weeks, episode four has been shortened to 17’00” and episode five to 17’21”.
The erroneous broadcast of the uncut version of episode three appears to have occurred due to a breakdown in standard procedure resulting from several coinciding staff absences.
All programs broadcast on C31 are transferred from tape or DVD into the station’s server playout system by the Ingest department. The ingesters are tasked with identifying any material contained within a program which does not meet C31’s broadcast conditions, including material which acknowledges sponsors, contains material of an advertising nature, is in excess of the program’s normal classification level, or is of poor technical quality. Special attention is paid to a number of programs which are known to contain problematic material (such as All 4 Adventure); or in which the producers regularly try and push the boundaries of what is understood to be acceptable under a community licence (particularly in relation to advertising or sponsorship acknowledgement).
Programs which [are] identified by Ingest as containing problematic material are referred to the Programming Department. The program will be examined by a member of the Programming Department, who will go through the episode to decide whether any program content is to be deleted, and if so identify the sections which are to be removed and provide Ingest with a list of segment times for the deletions. Ingest will then conform the program as instructed and export the edited program files to the server to await transmission.
In an unusual deviation from normal operating procedures, the original capture files for Series 3, Episode 3 of All 4 Adventure were not flagged as needing to be checked by Programming before transmission. This appears to have occurred due to an assumption that it didn’t need to be specifically flagged as the program is always checked by a member of the Programming Department as a matter of course. Unfortunately, the member of the Programming Department who oversees All 4 Adventure was away on sick leave on the days between the ingesting and transmission of the episode. As the episode had not been correctly flagged for checking, it was then not checked by anyone else. This extraordinary concatenation of complacency and coincidence therefore unfortunately resulted in some material going to air as part of the episode which should not have been broadcast.
Regarding stickers on the vehicles and logos on the presenters’ shirts, C31 states that:
[. . .] There is no dispute that the vehicles, equipment and clothing appearing in the program do feature the logos and emblems of various companies involved in the automotive and off-road vehicle arena. Some of these companies also happen to be sponsors of All 4 Adventure; others are not.
It has previously been decided by the ACMA (as per ACMA’s Investigation Report 1783) that a company’s logo will be considered to be material of an advertising character, notwithstanding the complete lack of any call to action, product promotion or contact information related to the logo. The question then which must be addressed is whether the presence of the logos falls within the exemption criteria in Clause 2(1) to Schedule 2 of [the Act].
[. . .]
It is C31’s assertion that the company logos which appear in the program do so in a manner which is accidental and incidental to the broadcasting of other matter.
The logos are incidental to the main thrust of the program, which is the narrative of the journey through the outback and the sights and difficulties the people encounter along the way. The focus of the camerawork is on the situations the cars and people find themselves in, rather than the logos which happen to appear on their equipment. Logo appearances are often brief, fleeting, with the camera panning away rather than holding on the logos. Shots are framed cutting off parts of the logos rather than ensuring they are clearly and entirely visible. The whole shooting style of the program suggests that the emphasis is on showing the progress (or lack thereof) of the expedition, rather than to display the logos. The people in the program do not draw attention to the logos or otherwise mention the companies or their products during the course of the program (recalling that the program content under consideration in this argument would be an edited version of the episode which would not include the material detailed in section 1 above, which it is conceded should have been deleted from the program before transmission).
It is common in many sporting and recreational activities for logos to appear on the equipment and uniforms or clothing used by the participants. That these logos are also broadcast on television as part of the televising of the activity is generally accepted to be accidental. In the case of All 4 Adventure, it is not possible to film the vehicles involved without also accidentally including the logos on their bodywork; likewise for the clothing worn by the program participants.
C31 submits that the logos which do appear in the program do so in a manner which is neither deliberate nor predominant, and therefore are incidental and accidental to the broadcasting of other matter, thereby satisfying the first limb of the test.
I have been told that the producers of All 4 Adventure do not receive payment from any companies for their logos to appear in the broadcast of the program on C31, and I have not been presented with any reason to disbelieve this. Payment is only received for the broadcasting of the discrete sponsorship announcements on C31, which are not part of the program content. Since the question is whether payment or other valuable consideration has been received for broadcasting the advertising material - the advertising material in this case being specifically the logos appearing in the program - the answer must be that payment has not been received for the broadcasting of that particular material, and therefore the second limb of the test is satisfied.
Given that both limbs of the test are satisfied, it is C31’s position that, in accordance with the exemption criteria in Clause 2(1) of Schedule 2 to [Act], C31 should not be taken to have broadcast an advertisement by broadcasting the sections of the episode of All 4 Adventure which would have been retained subsequent to editing as described earlier.
To remedy the admitted breach, C31 states that:
In order to strengthen the operating procedure regarding the checking of program content to make it more robust in the case of staff absence, we have implemented the following measures:
o Programs known to contain problematic material or which may do so based on prior experience will be permanently flagged as “Must be checked” in the master Forward Tape List database, noting that the episode must be checked by a member of the Programming Department or the Business Affairs Manager before transmission.
o Any program which must be checked, or which has been found to contain questionable material, will have “To be checked” included in the ingested files’ filenames, be placed in a discrete folder on the storage server, and have a checking notation added to the program’s entry in the master Forward Tape List database if it has not already be flagged as “Must be checked”.