Investigation Report No. 3140
File No. / ACMA2013/1547Licensee / W&A Willmington Pty Ltd
Station / Vintage FM 87.6 (and 87.8; 88.7)
Type of Service / Low Power Open Narrowcast Radio (networked LPON)
Name of Program / Drivetime with Willmoand general programming
Date/s of Broadcast / 17, 23 and 24 October 2013 – 4pm to 7pm (among others)
Relevant Legislation/Code /
- Section 18 of the Broadcasting Services Act 1992
- Section 133 of the Broadcasting Services Act 1992
Investigation conclusion
The Australian Communications and Media Authority concludes that the licensee, W&A Willmington Pty Ltd, did not breach section 133 of the Broadcasting Services Act 1992.
The complaint
On 6 November 2013, the Australian Communications and Media Authority (the ACMA) received a complaint that narrowcast radio station, Vintage FM, was operating illegally as a commercial radio station.
The complainant submitted that Vintage FM’sDrivetime with Willmo program ran rolling news coverage of local bushfire activity on 17, 23 and 24 October 2013, with the presenter reading directly from the Channel 9 News website. The complainant alleges that this programming is not of limited appeal, as required of a narrowcasting service.The complaint also claimed that 30 second news updates voiced by Peter Overton of Channel 9 news, traffic reports, and long range weather forecasts are regular features of the Drivetime with Willmo program and do not meet the narrowcasting criteria of ‘special interest’ or ‘limited appeal’.
Further, the complainant submits that Vintage FM broadcasts the syndicatedDick Clark’s Rock, Roll and Remember show on Friday nights, which is not of limited appeal, and that Vintage FM’sSaturday night request program is of broad appeal and similar to programs broadcast on commercial radio.
The licensee
The licensee of Vintage FM, W&A Willmington Pty Ltd, holds an apparatus licence to operate a low power open narrowcasting service on the 87.6 MHz frequency, transmitting from Rain Ridge Rd in Kurrajong Heights, NSW. The licensee holds 23 other apparatus licences that enable it to network the service to surrounding areas, including Blackheath, Blacktown, Katoomba, Lawson, Penrith, St Marys, Springwood and Werombi.
According to the Vintage FM website, the service aims:
to create a radio station that plays music from the 50’s and 60’s, nothing blasting in your ears, around the clock 24 hours a day, 7 days a week. Also, throw in some great radio serials, current local, regional and breaking international based news feeds, community events, all whilst having a huge amount of fun doing it![1]
Assessment
The assessment is based on written submissions from the complainant and the licensee, and a copy of broadcasts provided by the licensee to the ACMA for the following time periods:
17 October 2013 from 4pm to 7pm
23 October 2013 from 4pm to 7pm
24 October 2013 from 4pm to 7pm
25 October 2013 from 7pm to 11pm
26 October 2013 from 6pm to 10pm
The licensee also provided a detailed song playlist and a program schedule for the week commencing 21 October 2013.
The assessment has focused on whether the service provided is a narrowcasting service, rather than a service of general appeal.To meet the requirements of the Broadcasting Services Act 1992 (the Act), narrowcasting services should not simply duplicate existing formats of broad appeal, such as those provided by commercial radio stations. That is because it is considered that a service which is of limited appeal in terms using the criteria used to determine whether a service is a narrowcasting service will not be a service which provides programs that appear to be intended to appeal to the general public.
Issue: Is the licensee of Vintage FM providing an open narrowcasting service?
Relevant provision of the Broadcasting Services Act 1992
18 Open Narrowcasting Services
(1)Open narrowcasting services are broadcasting services:
(a) whose reception is limited:
(i)by being targeted to special interest groups; or
(ii)by being intended only for limited locations, for example, arenas or business premises; or
(iii)by being provided during a limited period or to cover a special event; or
(iv)because they provide programs of limited appeal; or
(v)for some other reason; and
(b) that comply with any determinations or clarifications under section 19 in relation to open narrowcasting services.
Complainant’s submissions
In his complaint to the ACMA, the complainant stated:
On 17th, 23rd and 24th of October 2013, between 4pm and 7pm on the Drivetime program with Wolmo [sic] which is thanks to Channel 9 news, the presenter ran rolling news coverage of local bushfire activity. The presenter read directly from the Channel 9 News site in one talk break. This is not Norrowcast [sic] or of limited appeal according to the ACMA guidelines. [...] Section 9 of the Broadcasting Services Clarification Notice 2001, clarifies that if the content of a broadcasting service relates only to specific information about a subject, and does not include general news, the service is a narrowcasting service.
Vintage FM broadcasts a syndicated radio show on Friday nights called Dick Clark’s Rock, Roll and Remember. Syndicated programs are of broad appeal and are broadcasted on Commercial radio stations [...]
Vintage FM broadcasts 30 second length news updates voiced by Peter Overton from Channel 9 news [...] This is the same as other Commercial radio stations like 2GB [...]
Vintage FM broadcasts a request show every Saturday night from 6pm till 10pm, where listeners ring and request their favourite popular songs from the 1950s, 1960s and the 1970s. The presenter also broadcasts shout outs with listeners’ names and suburbs on the radio. Request shows, and cheerio call outs on the radio is something commercial radio stations do on a daily basis. [...]
Vintage FM broadcast regular Traffic reports, and long range weather forecasts during the Drivetime show 4pm – 7pm. This is operating the same as a commercial radio station and does not meet the narrowcast criteria of ‘special interest’ or ‘limited appeal’.
Licensee’s submissions
In response to the ACMA’s request for comments, the licensee stated that there is no news broadcast as part of Vintage FM’s drivetime program or elsewhere on the station:
Perhaps the complainant mistook the paid advertising supplied by Channel 9 News, because it used the voice of newsreader Peter Overton. This advertising consisted of Peter Overton voicing messages such as “The Vintage FM top 5 at 5 is proudly brought to you by Nine News.” There are also three or four 30 second nine news paid advertisements that mention some items of news, for the purpose of directing people to watch Channel 9 news. Those advertisements run between 4-6pm but are not news bulletins. [...]
Radio news is about what is happening now, and is characterised by a formal bulletin style and a news theme, generally heard at the top of the hour. [...] There is no news on Vintage FM.
On the dates in question, a savage bushfire was ranging in our listening area. In fact one of our transmitters was burnt down in that fire.Because we know that some of the older listeners to Vintage FM would not have been listening to other stations, we were aware that they may not be able to hear life saving bushfire information, so we included this emergency information in our programs for the duration of the local fires. As a low power open narrowcaster, we serve a geographically limited area. The fire was affecting that area and was threatening the lives of our residents in our service area. For their safety we broadcast fire information.
The fire information was not news, it was emergency information. It was not proceeded by a theme and there was no other news content discussed [...]
The licensee further stated:
Vintage FM’s approach [to music programming] has not changed since the ACMA found in its favour [with regard to a previous complaint] [...] Our request show, like other programs on the station, is consistent with this approach. Vintage FM does not play music of broad appeal. [...]
Vintage FM plays the syndicated archival program Rock, Roll and Remember, hosted by Dick Clark. The program was made and broadcast in the 1960s. Dick Clark is now dead. The program is not a current syndication program and is not played on any commercial station in Sydney, indicating its limited appeal. [...]
Our narrowcast service is limited in many ways: in the music it plays, because it does not have news and other commercial radio programming elements, and is limited by geography. It is not a commercial radio service. [...] Vintage FM plays music from the 1940s, 50s and 60s, including many songs not programmed by similar mainstream radio formats. It does not contain news, traffic reports, competitions, time calls or local interviews.
Finding
The licensee is providing an open narrowcasting service.
Reasons
For a licensee to be providing an open narrowcasting service, the service must satisfy at least one of the matters set out at paragraph 18(1)(a) of the Broadcasting Services Act 1992 (the BSA), and paragraph 18(1)(b) of the BSA, that is, any determinations or clarifications made under section 19 in relation to open narrowcasting services, that may apply to that service.
In ACMA Investigation Report 201104, the ACMA determined that the Vintage FM service was limited because it provided programming of limited appeal[2].Whether the programming complained of is of limited appeal is also the key issue for this investigation.
There are no other relevant matters set out at paragraph 18(1)(a) of the BSA or paragraph 18(1)(b) of the BSA that arise in this investigation or relate to the issues alleged by the complainant.
Is reception of the Vintage FM service limited because it provides programs of limited appeal? (sub-paragraph 18(1)(a)(iv) of the BSA)
According to the ACMA Guidelines:
The reception of narrowcasting services is often limited because of their highly specialised and homogeneous content, for example racing radio services. In contrast, commercial broadcasting services commonly comprise a number of distinct program components which, in combination, form a broad-based service of general appeal.
Program components which would commonly be found on services of general appeal include music, news and weather, traffic reports, current affairs programs, and sports coverage and information. Whether a service is a narrowcasting service will depend on the program elements of the service as a whole, and not just individual programs.
[…]
Music and news are very often significant program elements in radio services that are ‘intended to appeal to the general public’, that is, commercial broadcasting services. Therefore, services that broadcast predominantly music and news programs, whose reception is not otherwise limited, will not be narrowcasting services unless their content is sufficiently specialised so as to be either targeted to a special interest group or of limited appeal.
The ACMA’s investigation of Vintage FM has meant an assessment of the program elements of the narrowcasting service as a whole, not the isolated elements of particular programs sited by the complainant. However, each distinct content complaint has been addressed below in order to sufficiently canvass the alleged concerns raised by the complainant.
a)Music programming on Vintage FM
The licensee claims that its service format is limited because Vintage FM broadcasts only music from the 1940s, 1950s and 1960s. An assessment of a sample of recordings and program schedules provided as part of this investigation indicates that there has been no significant change in the format of the music broadcast by Vintage FM or in its general programming style and schedule since Investigation 201104 which was concluded in November 2011.
Vintage FM broadcasts Dick Clark’s Rock, Roll and Remember show on Friday nights. The program is an archival recording of the original program syndicated on commercial networks internationally between 1982 and 2004. The program features popular music from the 1950s and 1960s and associated commentary from the late US radio host, Dick Clark. The content of this program is consistent with the style ofother programming broadcast on Vintage FM.
It is considered this program is of limited appeal because the program is no longer current, its presenter is deceased, and its content is mainly music and material from the 1950s and 1960s.
Vintage FM’s music request program on Saturday nights does not differ greatly from its other programming, except for the inclusion of slightly more talk per hour. Each song is introduced by the presenter with a short dedication to a specific listener and requested songs are from the 1940s, 1950s and 1960s.The total amount of broadcast time dedicated to music is reduced by approximately 5% during the four hours of the program in order to introduce and back announcethe song dedications.
The slight variation to the standard program format during the request showand the inclusion of a few minutes of extra talk per week over the station’s total programmingschedule do not compromise the licensee’s satisfaction of section 18(1)(a)(iv) of the Broadcasting Services Act 1992.
b)News reports on Vintage FM
On 17, 23 and 24 October 2013, the presenter of Drivetime with Willmoread regular updates from the NSW Rural Fire Service website throughout the course of the program. The information related to fire status updates, evacuation procedures, safety precautions, and information on what to do with pets and livestock. These updates were in response tothe emergency situation that was unfolding within the broadcast area during the time of broadcast and amounted to less than 10% of the total content broadcast during the program.
The ACMA considers that Vintage FM provided this content as a community serviceannouncement, updating on an emergencysituation that potentially threatened its listeners. As a result, the coverage is not considered to compromise the ability of Vintage FM to be considered an open narrowcasting service, especially given the extraordinary circumstances on those broadcast dates.
The slight variation to the standard program format during dates concerned and the inclusion of a few minutes of emergency information do not compromise the licensee’s satisfaction of section 18(1)(a)(iv) of the Broadcasting Services Act 1992.
c)Station advertising
During the Drivetime with Willmo program, Vintage FM broadcasts up to four 30 second segments per hour that are provided by Channel 9 News and presented by Channel 9 Newsreader, Peter Overton.
Submissions from the licensee contend that these segments are presented as advertisements for Channel 9 News,including the television theme music and the Channel 9 News broadcast details. They also feature three or four news headlines that are presented as enticement to view the full news program on Channel 9.
It is noted that these segments are not presented or scheduledregularly on the hour or half hour and do not feature other elements that are typical to commercial radio news segments, such as being back announced and followed by the weather. Therefore they do not bear the characteristics of news for the purposes of the Broadcasting Services Act 1992 or the ACMA’s narrowcasting for radio guidelines.
The complainant’s submission that Vintage FM is an information service that should not broadcast general news under Section 9 of the Broadcasting Services Clarification Notice 2001 does not apply in this case, as Vintage FM does not purport to be an information service for the purposes of that provision, but rather a service that service that provides programs of limited appeal (i.e. music from the 1940s, 1950s and 1960s).
d)Weather updates
Vintage FM does not appear to broadcast traffic updates, as claimed by the complainant, but it does broadcast weather updates, predominately during the Drivetime with Willmo program.
These updates are between 30 seconds and one minute in length and are broadcast no more than once per hour and no more than nine times per day. Although the weather updates focus on the local listening area, weather updates can comprise a programming element that is or general appeal and common to commercial radio services. However, in the current circumstances no more than nine minutes is dedicated to weather updates over the course of a 24 hour period, and in reflection of the program elements of the service as a whole, it is not considered that these broadcasts compromise Vintage FM’s satisfaction of section 18(1)(a)(iv) of the Broadcasting Services Act 1992.
Conclusion
The ACMA considers, on balance, that the Vintage FM service provides programs of limited appeal. It is therefore a narrowcasting service.
Although the service does contain some small amounts of material which would still be popular with large sections of the community, and does broadcast material and advertising content that is more general than music from the 1940s, 1950s and 1960s, viewed as a whole, the programming predominately contains material which would have no real appeal for much of the general public. The programming on Vintage FM on the dates concerned is of limited appeal.
ACMA Investigation Report – Vintage FM1
[1] accessed 13 January 2014
[2]ACMA Investigation Reports 2150 and 201104