Investigation Report No. 2814
File No. / ACMA2012/714-1Licensee / Channel Seven Melbourne Pty Ltd
Station / TV4ME
Type of Service / Datacasting Service
Name of Programs / All About Animals, 4WD TV Pro Tips, CNET TV, Escapes 4 Me, Gasoline, and Channelvision
Date/s of Transmission / 9, 10, 11, 21 and 22 March 2012.
Relevant Legislation/Code / Clauses 2, 4, 13(1), 13(3), 14(1) and 14(2) of Schedule 6 to the Broadcasting Services Act 1992
Investigation findings
· Breach of subclause 14(1) of Schedule 6 to the Broadcasting Services Act 1992 (the Act) (provision of a datacasting service in breach of licence condition).
The complaint
On 17 April 2012, the ACMA received a complaint from a member of the public, alleging the licensee of datacasting service TV4ME, Channel Seven Melbourne Pty Ltd (the licensee), had breached its licence conditions, by transmitting programs that were:
[...] wholly or substantially infotainment or lifestyle programs.
The complaint has been investigated against the provisions of clause 14 of Schedule 6 to the Act.
The service
The licensee is licensed to provide a datacasting service under Schedule 6 to the Act. The simplified outline under Clause 1 of Schedule 6 to the Act states:
[...]
· Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.
· The main restrictions on datacasting content are as follows:
(a) restrictions on the provision of certain genres of television programs;
(b) restrictions on the provision of audio content.
· Datacasting licensees (other than restricted datacasting licensees) will be allowed to provide the following types of content:
(a) informationonly programs (including matter that enables people to carry out transactions);
(b) educational programs;
(c) interactive computer games;
(d) content in the form of text or still visual images;
(e) Parliamentary broadcasts;
(f) ordinary electronic mail;
(g) internet content.
Relevant legislation
Schedule 6 to the Act contains the following provisions that are relevant to the matters raised by the complainant:
14 Condition relating to category A television programs
(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be:
(a) a category A television program; or
(b) an extract from a category A television program.
(2) The condition set out in subclause(1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:
(a) the extract is not longer than 10 minutes; and[1]
(c) the extract is not combined with one or more other extracts from category A
television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and
(d) having regard to:
(i) the nature of the extract; and
(ii) the circumstances in which the extract is provided;
it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.
18A Genre conditions do not apply to advertising or sponsorship material
The conditions set out in [clause]14 [...] do not prevent a datacasting licensee from transmitting advertising or sponsorship material.
Definitions provided under Schedule 6 to the Act that are relevant to this investigation are at Attachment A.
The programs
The complainant alleged the following programs constitute a ‘representative sample of programs’, transmitted by the licensee that fall into the ‘infotainment or lifestyle’ program genre:
· All About Animals (transmitted 9 March 2012, 3:00pm)
· All About Animals (transmitted 21 March 2012, 3:00pm)
· 4WD TV Pro Tips (transmitted 9 March 2012, 7:30pm)
· 4WD TV Pro Tips (transmitted 22 March 2012, 3:00pm)
· CNET TV (transmitted 10 March 2012, 11:00am)
· Escapes 4 Me (transmitted 10 March 2012, 3:30pm)
· Gasolene (transmitted 11 March 2012, 6:00pm)
· Gasolene (transmitted 22 March 2012, 11:00am)
· Channelvision (transmitted 22 March 2012 at 7.30am).
The TV4ME website[2] provides descriptions of these programs:
PROGRAM / WEBSITE DESCRIPTIONAll About Animals / 9 [Nine] year old Olivia and her brother Jake travel around Australia meeting a wide variety of pets & animals as well as chatting to many passionate animal experts and volunteers about their experiences with animals. They also chat to some awesome Australian celebrities about their careers and their pets. From cheetah to possums, from horses to gibbons, share Olivia and Jake's exciting animal adventures each time you tune in to All About Animals!
4WD TV Pro Tips / Love 4WDing, Camping and off road adventure? This is the series for you! All you need to know for your 4WD adventure.
CNET TV / CNET bring us all the latest in technology, apps, gaming and keep us up to date on Australian releases.
Escapes 4 Me / Australia's top travel surfing series explores off the beaten path surf spots in the Pacific, South East Asia and Australia.
Gasolene / Gasolene is a unique car focused television program for the car enthusiast, a real car show. Together Presenter Glenn Everitt and Producer Michael Curson combine years of knowledge in the automotive industry & car enthusiast scene to deliver an informative, exciting & action packed show.
Channelvision[3] / This week Channelvision takes a look at the Farmyard Nursery in the Nation’s Capital. We profile June Irving, Principle of Bentleys of Canberra in our Women in Business segments. Jason Lancsar presents an episode of the Coerver Coaching Master Class Series, we catch up on What's On around the nation and we take a look at a music clip from Sunchaser and the Wayward Orchestra.
Assessment
This investigation is based on:
· a recording of the programs in question, provided by the licensee
· the complainant’s submission to the ACMA dated 13 April 2012
· the licensee’s submission to the ACMA on 22 June 2012
· the licensee’s response to the ACMA’s preliminary investigation report dated
9 November 2012
· publicly available information, the sources of which are identified below.
Issues
The provision of datacasting services is regulated under Schedule 6 to the Act. Licensees providing datacasting services are generally prohibited from providing certain genres of television programs (‘category A’ and ‘category B’ television programs), subject to some exceptions. This restriction is to ensure datacasting licensees provide a service that is different from a traditional broadcasting service. Information-only programs and educational programs are not category A television programs (subclause 13(3) of Schedule 6 to the Act). Extracts of category A programs are permitted, providing the extracts meet certain requirements.
The complainant alleged the licensee has been transmitting programs that are wholly or substantially infotainment or lifestyle programs (a category A television program under paragraph 13(1)(e) of Schedule 6 to the Act).
The ACMA has formed the view that some of the programs cited by the complainant could fall into the following genres of category A television programs specified in subclause 13(1) of Schedule 6 to the Act:
· a sports program
· an infotainment or lifestyle program
· a children’s entertainment program.
The licensee has submitted that the programs in question (except for Escapes 4 Me) are information-only programs and are therefore not in breach of the licence condition at clause 14 of Schedule 6 to the Act. The licensee submitted that Escapes 4 Me contains extracts of programs that are permitted to be shown under subclause 14(2) of Schedule 6 to the Act.
How are information-only programs different to infotainment or lifestyle programs?
Infotainment or lifestyle
The Act defines an infotainment or lifestyle program as one:
[...] the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.
Information-only
Relevantly for this investigation, clause 4 of Schedule 6 to the Act defines an information-only program as one:
[...] the sole or dominant purpose of which is to:
(a) provide factual information, or directly-related comment, about any of a wide range of matters, including but not limited to any of the following:
(i) products;
(ii) services;
(iii) community activities;
(iv) domestic or household matters;
(v) private recreational pursuits or hobbies;
[...]
[...] where there is not a significant emphasis on dramatic impact or entertainment.
The Explanatory Memorandum (EM) to the Act provides additional guidance about the meaning of ‘not a significant emphasis’,
A key feature of an ‘information-only’ program is that there must be little or no emphasis on dramatic impact or entertainment value. This is intended to distinguish such programs from Category A or B programs, particularly such genres as ‘infotainment’, where there is heavy emphasis on entertainment.
Making the distinction
The ACMA considers the key questions posed in assessing whether a program is an information-only program or an infotainment or lifestyle program are:
· What is the sole or dominant purpose of the program?
· Does the program have a significant emphasis on dramatic impact or entertainment?
Other issues
In respect of the program All About Animals considered below, it will also be necessary to determine whether the program is a children’s entertainment program.
In respect of Escapes 4 Me considered below, it will also be necessary to determine whether it includes a sports program.
Submissions
Complainant’s submission
The complainant submitted:
The channel [TV4ME] has been broadcasting many programs [...] which are wholly or substantially infotainment or lifestyle programs. This is a category of programming which is prohibited from being transmitted by a datacast channel according to the licence conditions for datacasters [...]
This submission applies to the six programs discussed in this investigation report.
Licensee’s submission
The Licensee submitted:
[...] each of the Programs, other than Escapes 4 Me is appropriately categorised as an “information only” program as defined in Clause 4 of Schedule 6 to the Act and is therefore appropriate for inclusion in a datacasting service.
Escapes 4 Me is actually not a program in itself, but is clearly three separate excerpts...and therefore the content falls within the exemption at clause 14(1).
Issue 1: Is the program All About Animals a category A program?
Complainant’s submission
The complainant identified All About Animals (transmitted 9 March 2012 at 3.00pm and 21 March 2012 at 3.00pm) as an infotainment or lifestyle program that is prohibited from being transmitted on a datacasting service.
Licensee’s submission
In relation to All About Animals, the licensee stated:
This program is an information only program about animals which is directed towards children. The program consists of various short segments, generally in the form of an interview conducted by one or both of the program’s two hosts (both children) and a subject, in relation to either a domestic, farm or wild animal, or associated product or service. Each of the segments is informative, at a level that would be appropriate for primary school age children.
While there is a very limited amount of content in the program that is entertaining (such as a brief segment between the two children where a joke is told) when considered as a whole the dominant emphasis of the program is on providing factual information. Because the program is directed towards children it is necessary that the information is conveyed in a way that children will understand and remember. However, we do not believe that there is a significant emphasis on dramatic impact or entertainment.
Finding
The program All About Animals is a category A television program (an information or lifestyle program, as well as a children’s entertainment program). Its transmission is therefore a breach of clause 14(1) of Schedule 6 to the Act.
Reasons
The licensee submitted that All About Animals is an information-only program. In determining whether All About Animals is an information-only program, the ACMA considered the following:
What is the sole or dominant purpose of the program?
The ACMA considers the dominant purpose of All About Animals is to provide a child audience with factual information and direct commentary about various animals, pet care and animal-related activities.
Does the program have a significant emphasis on dramatic impact or entertainment?
The ACMA is of the view that the episodes of All About Animals have a significant emphasis on entertainment for the following reasons:
· The children participate in a number of entertaining, child-focused activities, such as attending a horse riding school that catered to children and a ‘Kids 2 Keepers’ course held at a reptile park. The hosts are shown to be enjoying themselves in these segments.
· The children are filmed in a variety of localities in various states, such as farms, zoos, aquariums and famous landmarks such as Bondi Beach and Darling Harbour, as opposed to presenting from a studio set.
· The ‘Celebrity Owner’ segment provides viewers with an upbeat conversation about a celebrity’s pet. The celebrity in each segment is asked questions about tricks the pet can do and also asked a number of personal questions about the celebrity, unrelated to animals. The segment involves joking and laughing between the celebrity and the host that is engaging and entertaining for a child to watch.
· The ‘Viewers’ Pets’ segment depicts photos and ‘fun facts’ sent in from viewers about their pets. The pet owners are all children and the ‘fun facts’ are childlike, humorous and entertaining.
· Viewers are entertained by the ‘Animal Joke’ segment where a joke is shared between the hosts. Viewers are also encouraged to send their own jokes to the show.
Although the dominant purpose of the program is to provide factual information and direct commentary about animals, the ACMA considers the episodes viewed have a significant emphasis on entertainment. As a result, rather than a permitted information-only program, All About Animals is an infotainment or lifestyle program.
Further, the ACMA is of the view that the program is also a category A television program on the basis that it is a children’s entertainment program.
The ACMA has already explained above why it considers the program has a significant emphasis on entertainment. In addition to being entertaining, the ACMA considers the program is made specifically for children for the following reasons: