Investigation Report No. 2408

File No. / ACMA2010/859
Licensee / Central Highlands Broadcasting Inc.
Station / 3CH, Kyneton
Type of Service / Community broadcasting
Issue / Encouraging Participation
Relevant Code / Clause 9(2)(c)(i) of the Broadcasting Services Act 1992

Investigation conclusion

Breach of clause 9(2)(c)(i) of the Broadcasting Services Act 1992[encouraging participation in the operations of the service].

The complaint

On 21 March 2010, the Australian Communications and Media Authority (the ACMA) received a complaintabout the operations of Central Highlands FM Inc., the licensee of 3CH. The complainantalleged that membership of the Committee of Management of 3CH was limited to people living in one shire, whereas the 3CH licence area actually covers five shires.

The service

3CH has operated in the Kyneton RA1 licence area since 26 April 2000 on a long-term community broadcasting licence and its current licence is due to expire on
1 July 2013.

The community interest in respect of which the licence was allocated and last renewed is the general community in the geographic area of Kyneton RA1. Located to the north west of Melbourne, the Kyneton RA1 licence area includes parts of the local government areas of Greater Bendigo, Hepburn, Macedon Ranges, Mitchell and Mount Alexander.

Assessment

Theassessment is based on written submissions made by the complainant and 3CH.

Issue – Encouraging participation in the operations of the service

Relevant provision in the Broadcasting Services Act 1992

Schedule 2 Clause 9 - Conditions applicable to services provided under community broadcasting licences

(2) Each community broadcasting licence is also subject to the following conditions:

…

(c)the licensee will encourage members of the community that it serves to participate in:

(i)the operations of the licensee in providing the service or services

Complainant’s submission

The complainantsubmitted that 3CH’s constitution was:

changed at [the] 2009 AGM [annual general meeting] to limit membership of committee to people living in one shire – station’s licence area covers five shire areas.

Licensee’s submissions

In relation to the complaint, 3CH stated:

Whilst our licensed area includes the fringes of other Shires, the signal cannot be considered satisfactory in the populated areas. The Macedon Ranges Shire is the only shire in the broadcast area to support this station and we enjoy a good relationship with them.

The Committee of Management considered that the original clause in our Statement of Purposes document that members of the Committee should come from a region limited to a fifty kilometre radius of Kyneton was inappropriate, impractical and ineffective for meaningful participation and from a travelling point of view. People who cannot hear our signal are not interested in the station.

The Committee in good faith decided to make a change to the Statement of Purposes as reflected in the attached minutes of the 2009 AGM that members of the Committee live and or work within the Macedon Ranges Shire. There was no intention to “limit” membership, indeed we actually felt at the time that we were relaxing a more stringent clause.

We relayed this proposed change to all members in writing in the period stipulate prior to the 2009 AGM where the motion was carried unanimously. There was no discussion, nor dissention at the time.

We trust that our explanation reflects the good intention of the Committee in proposing the change made and nothing sinister as suggested by the complainant. It was purely a practical and logical move.

3CH also submitted copies of:

  • the notice of its 2009 AGM, dated 14 July 2009, where 3CH propose an amendment to its constitution. The proposed amendment states:

14.1 - Candidates for election to the Committee must live or work within the boundaries of the Macedon Ranges Shire, Victoria. Nominations of candidates for election to Committee:

a)shall be made in writing, signed by two members of the Association and accompanied by the written consent of the candidate (which may be endorsed on the form of the nomination) and:

b)shall be delivered to the secretary of the Association not less than fourteen days before the date fixed for the holding of the annual general meeting.

  • a copy of the 2009 AGM minutes (held 21 August 2009) which records that the amendment was passed by the membership; and
  • a letter from the Department of Justice, Consumer Affairs Victoria approving the amendment to 3CH’s constitution.

Finding

The delegate finds that 3CH is in breach of clause 9(2)(c)(i) of Schedule 2 of the Broadcasting Services Act 1992(the Act).

Reasons

In its submission, 3CH acknowledges that at its 2009 AGM it proposed and passed an amendment to its constitution to include a clause to restrict the membership of its Committee of Management to those 3CH members living or working in the Macedon Ranges shire. 3CH provided a copy of its amended constitution which includes this clause and a copy of a letter from the Department of Justice, Consumer Affairs Victoria approving the amendment to the constitution.

It is a condition under clause 9(2)(c)(i) of Schedule 2 of the Act that the licensee must encourage participation in its operations. Open membership and access to all aspects of the service are fundamental elements of participation in a community broadcasting service. Compliance with this condition is one of the key characteristics of community broadcasting services which distinguish them from other categories of service.

The ACMA notes 3CH’s submission that it did not intend to restrict membership of the Committee of Management and that it believed it was relaxing a more stringent requirement. When notifying members of the proposed change in 2009, 3CH stated:

Reason: The station’s move to Woodend in 2008 and the very recent change in broadcasting its programs from a new antenna on Mt Macedon mean that the station’s broadcasts can be heard virtually throughout the whole of the Macedon Ranges Shire. The previous restrictive condition on the residence or place of work for a Committee of Management member to be within 50 kms of the P.O. at Kyneton is now inappropriate. The full Committee of Management supports this proposed change of clause 14.1 of the Constitution.

However, by restricting membership of the Committee of Management only to 3CH members living or working in the Macedon Ranges Shire, 3CH is denying its other members the ability to participate fully in the operations of the service. 3CH is therefore in breach of clause 9(2)(c)(i) of Schedule 2 of the Act.

Action taken

In its response to the ACMA’s preliminary investigation report, dated 20 May 2010,3CH stated:

  • it will amend its constitution to allow all its members to stand for election to the Committee of Management. This will occur at the next AGM, scheduled for Friday, 23 July 2010.

The ACMA was given the draft amendment to its constitution and is satisfied that the proposed amendment addresses the concerns raised in this investigation. 3CH will forward a copy of the amended constitution to the ACMA following registration with the Department of Justice Victoria.

TheACMA considers these actions address the compliance issues raised by the investigation and will take no further action following the receipt of the amended constitution.

Decision

I, Stephen Atkins, A/g Manager, Community Renewals and Investigations Section, Community Broadcasting Group, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that the licensee, Central Highlands Broadcasting Inc. breached clause 9(2)(c)(i) of the Broadcasting Services Act 1992.

Signed: ------

Stephen Atkins

dated this day of June 2010

ACMA Investigation Report No 2408 – 3CH – Encouraging participation in the operations of the service.

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