Investigation Report No. BI-233

Investigation Report No. BI-233

Summary
File no. / ACMA – BI-233
Licensee / Casinos Own Wireless Association Incorporated
Station / 2COW
Type of service / Community radio
Name of program / Overnight music programming
Dateof broadcast / 12 January 2016
Relevant code / Community Radio Broadcasting Codes of Practice 2008

• Code 3.2 [prevailing community standards]
• Code 7.3(b)[complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible]
• Code 7.3(c) [complaints will be responded to in writing within 60 days of receipt]

Decision / No breach of Code 7.3(b) of the Community Radio Broadcasting Codes of Practice 2008 [complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible]
Breach of Code7.3(c)of the Community Radio Broadcasting Codes of Practice 2008 [complaints will be responded to in writing within 60 days of receipt]
TheACMA concludes its investigation into the licensee’s compliance with Code 3.2 of the Community Radio Broadcasting Codes of Practice 2008 [prevailing community standards] without making a finding.
Date finalised / 10 November 2016

Background

On 13 September 2016, the Australian Communications and Media Authority (the ACMA) commenced an investigationabout material broadcast on 12 January 2016 by the licensee of 2COW, Casinos Own Wireless Association Inc.

In a complaint to the ACMA dated 13 September 2016, the complainant alleged that the licensee broadcast the ‘f word’ between 10pm and 11pm on 12 January 2016. The complainant also alleged that she did not receive a response to her written complaint, lodged with the licensee on 13 January 2016.

On 21 September 2016, the ACMA wrote to the licensee, requesting a copy of the relevant broadcast for assessment against Code 3.2 of the Community Radio Broadcasting Codes of Practice 2008 (the Codes). The licensee was also asked to explain why it did not respond to the complainant’s correspondence and to comment on its compliance with Codes 7.3(b) and 7.3(c).

Assessment

This investigation is based on a submission from the complainant and a submission provided by the licensee to the ACMA.

Issue 1: Did the licensee consider prevailing community standards of the broadcast?

Relevant Code provision

Code 3.2 states:

We will attempt to avoid censorship where possible. However, in our programming decisions, we will consider our community interest, context, degree of explicitness, the possibility of alarming the listener, the potential for distress or shock, prevailing Indigenous laws or community standards and the social importance of the broadcast.

Finding

The ACMA concludes the investigation of the licensee’s compliance with Code 3.2 without making a finding.

Reasons

In a letter dated 13 January 2016 to the licensee, the complainant stated:

Last night [12 January 2016] the most hideous music was played at approximately 10pm for I do not know how long before. After about 11pm the music became more bearable and mainstream.

[...]

The announcer said, the upcoming song was from the Ultra F..kers (fill in that U and C yourself again please). Who is responsible for allowing such filth to air in our town?

[…]

Anyway, take this as a complaint on the stuck groove and the F..kers.

[…]

In an email sent on 8 October 2016 to the ACMA, the licensee stated:

COW is unable to provide a recording for the timeframe as the logging equipment has the capacity to record over a 60-dayperiod, therefore, the recording for that period has been taped over.

The issue was discussed at a meeting of COW, where members were satisfied that the material described would not have been broadcast on COW.

[…]

In the event that the material was broadcast on COW, it is not acceptable. The committee will continue to take every possible precaution to ensure that material such as described is not broadcast on COW.

It is noted that the complaint about the broadcast was lodged with the licensee on 13 January 2016. Generally, licensees retain a copy of material broadcast for 6 weeks, which the licensee did in this instance. Therefore, a copy of the broadcast would not have been available after 23 February 2016.

In any event, under clause 5 of Schedule 2 to the Broadcasting Services Act 1992 (the BSA), a licensee must retain a record of a broadcast only if it relates to a political subject or current affairs.

In this case, as a copy of the broadcast is no longer available,it is not possible to review the material.Consequently, the ACMA makes no finding against the licensee’s compliance with Code 3.2.

Issue 2: Did the licensee comply with Code 7.3?

Relevant Code provision

Code 7.3 states:

We will ensure that:

[…]

(b) complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible.

(c) complaints will be responded to in writing within 60 days of receipt, as required by the Act, and the response will include a copy of the Codes.

[…]

Findings

The licensee did not breach Code 7.3(b), as it conscientiously considered complaints received from the complainant over a period of time, investigated them as necessary, and responded substantively as soon as possible.

The licensee breached Code 7.3(c),as it did not respond in writing within 60 days of receipt of the complaint.

Reasons

Code 7.3(b) requires licensees to consider complaints conscientiously, investigate them if necessary, and to respond substantively as soon as possible. Code 7.3(c) requires licensees to respond to such complaints within 60 days of receipt.

In this case, it is noted that the complainant has made a series of complaints to the licensee over a period of time. The ACMA has sighted copies of those complaints, which relate to a number of operational and management matters.

The ACMA has also sighted copies of the licensee’s written responses to the complaints made before the complaint of 13 January 2016 and/or sighted evidence of action taken by the licensee to address relevant matters.

It is noted that, after making the complaint on 13 January 2016, the complainant continued to lodge complaints (from 14 January 2016 until 29 September 2016). The ACMA has sighted copies of the licensee’s written responses to these complainantsand/or minutes of meetings at which relevant issues were discussed.

From a review of the copies of correspondence between the complainant and the licensee, the ACMA notes that:

• the tenor and tone of the complaints were challenging and, at times, could reasonably be said to be threatening or demanding. In some complaints, the complainant warned the licensee that she would lodge complaints with relevant authorities should she consider that various matters had occurred, such as discrimination, abuse, breach of contract, or non-compliance with the codes or the constitution.
• the language used by the licensee in its responses to the complaints could reasonably be said to be courteous andthe actions taken were genuine. For example, complaints received in November and December 2015 were considered at meetings on 30 November and 7 December 2015, and the suitability of the program the subject of the 13 January 2016 complaint was discussedat a meeting on 23 February 2016.

In an email sent on 8 October 2016to the ACMA, the licensee stated:

All correspondence from [the complainant] has been tabled at committee and/or general meetings of COW.

Therefore, the committee believes that it has conscientiously considered, investigated as necessary, and responded to substantively as soon as possible to emails from [the complainant] to the best of our volunteer members’ ability under difficult circumstances.

[…]

At the General Meeting [23 February 2016], members were advised of the issue and the actions taken by the committee. The general members endorsed the action. The President did invite members to make arrangements to read all the correspondence, should they wish.

[…]

Having regard to:

• the volume of complaintssent to the licensee before the 13 January 2016 complaint, which included numerousdemands for action by the licensee; and
• the actions taken by the licensee to resolve a series of complaints with the complainant, both before and after the 13 January 2016 complaint;

the ACMA is of the view that the licensee conscientiously considered complaints received from the complainant over a period of time, investigated them as necessary, and responded substantively as soon as possible. Accordingly, the licensee did not breach Code 7.3(b).

In relation to the complaint of 13 January 2016, the licensee advised the ACMA by email on 8 October 2016 that:

[…] It is unfortunate if a reply was not sent to [the complainant] following her email dated 13 January 2016. It is COW’s protocol to forward acknowledgement of receipt of correspondence as soon as it is convenient for the Secretary to do so.

It is also unfortunate that it is most likely due to her bombardment of emails to COW that a reply was overlooked.

[…] The bombardment of emails over a short period of time, including at times two per day, an email on Christmas Eve and Christmas Day, has proved challenging.

[…]

It has been extremely difficult, near impossible, to keep up with the changing demands made/ circumstances created by [the complainant].

[…]

The ACMA notes the licensee’s submission that the broadcast the subject of the complaint was investigated by the President and discussed at a meeting on 23 February 2016. The ACMA accepts the licensee’s explanation that it overlooked sending a written response to the complainant, given the volume of complaints received from her over many months.

The ACMA is of the view that the licensee breached Code 7.3(c), as it did not provide a written response within 60 days of receiving the 13 January 2016 complaint.

In response to the preliminary breach finding, on 9 November 2016, the licensee indicated that it will make all members aware of the Code 7 requirement at its next general meeting.

The ACMA notes that the licensee has complaints handling provisions in its constitution, as well as established procedures for handling complaints. In this regard, it is considered that the licensee has adequate mechanisms in place to assist it in dealing with complaints.

In light of the licensee’s actions and the mechanisms that are in place, the ACMA does not propose to take any further action in this instance.