Investigation Report No.3237
File No. / ACMA 2014/619Licensee / 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) – general area serviced: Blacktown, Penrith, Blue Mountains and Camden (NSW)
Name of program / General programming
Relevant legislation / Sections 18 and 133 of the Broadcasting Services Act 1992
Date finalised / 19 December 2014
Decision / The licensee of Vintage FM:
is providing an open narrowcasting service within the meaning of Section 18
is not providing a commercial radio broadcasting service without a licence in contravention of Section 133
of the Broadcasting Services Act 1992.
The complaint
In July 2014, the Australian Communications and Media Authority (the ACMA)commenced an investigation concerning Vintage FM.The investigation was commenced in response to a complaint that Vintage FMwas ‘operating illegally as a commercial radio station’ as ‘they do not satisfy any part of the criteria stipulated in Section 18 of the [Broadcasting Services Act 1992]’for an open narrowcasting service.
The service
Vintage FM is licensed as a low power open narrowcasting (LPON) service.
According to Vintage FM’s website:
Vintage FM plays music that most Radio Stations don’t play anymore. We play the Music You Grew up with and the Music You Remember. In fact we play the music from the 50’s & 60’s, our music is all over 40 years old and we play it all from A to Z.[1]
Persons providing services under networked LPON licences must give the ACMA a statement explaining the basis upon which they claim the service is limited in reception. Vintage FM is a networked LPON and its statement indicated the service format is ‘40’s, 50’s & 60’s music’ and ‘the service is targeted to a special interest group: senior citizens aged 65 years and over’.[2]
Assessment
The investigation is based on:
submissions from the complainant andVintage FM to the ACMA
a program log provided by Vintage FM for a sample week
copies of recordings provided by Vintage FM for these periods:
- 9am to 10am on 29 July 2014
- 5pm to 6pm on 1 August 2014
- 7pm to 8pm on 2 August 2014.
Issue: Is the licensee of Vintage FM providing an open narrowcasting service?
Relevant provisions
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 provide 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.
133 Prohibition on providing a commercial radio broadcasting service without a
licence
A person must not provide a commercial radio broadcasting service unless the person has a licence to provide that service.
Penalty: 2,000 penalty units.
The investigation has also had regard to the ACMA’s Narrowcasting for radio guidelines and information about open narrowcasting radio services (May 2011)[3] (the narrowcasting guidelines) and two relevant clarification notices.[4]
Complainant’s submissions
The complainant submittedto the ACMA that Vintage FMdoes not ‘satisfy any part of the criteria’ for an open narrowcasting service, in particular, it is targeted at ‘senior citizens aged 65 years and over’ and:
A format designed to appeal to 12.5% of the population does not mean ‘limited appeal’ nor [does it] target ‘a special interest group’.
Vintage FM’s submissions
Vintage FM submitted to the ACMA that:
Vintage FM’s programming, which is primarily music, is not intended to appeal to the general public, it is intended to appeal to older listeners not targeted by commercial radio services.
…
The service is limited in many ways: in the music it plays, because it does not have news and other commercial radio programming elements, and … by geography.
Finding
The licensee of Vintage FM is providing an open narrowcasting service, as defined under Section 18 of the Act.
Reasons
The assessment has focused on whether Vintage FM is providing a narrowcasting service rather than a service of general appeal.
Based on the complaint and Vintage FM’s submissions, the ACMA has considered whether or not Vintage FM’s ‘reception is limited’ by meeting one or more of the following criteria in Section 18 of the Act:
targeted to special interest groups (Section 18(1)(a)(i) of the Act)
intended only for limited locations (Section 18(1)(a)(ii) of the Act)
provides programs of limited appeal (Section 18(1)(a)(iv) of the Act).
Is Vintage FM targeted to special interest groups?
Under Section 18(1)(a)(i) of the Act, a service may be a narrowcasting service because it is targeted to special interest groups.
The complainant submitted that ‘senior citizens aged 65 years and over is a demographic not a special interest group’.
The narrowcasting guidelines explain that:
With one exception, target audiences such as particular age groups (or a gender) will not usually qualify as special interest groups. This is because people do not necessarily share common tastes or interests merely because they belong to a similar age grouping (or the same gender). The exception is services targeted to young children which, because of their specialised content, would be unlikely to appear to be intended to appeal to the general public.[5]
Also, the 2002 Clarification notice makes it clear that a broadcasting service targeted to persons of a particular age or age group is not for that reason alone an open narrowcasting service. The one exception is for services targeted to persons under the age of ten which are considered to be open narrowcasting services.
Accordingly, Vintage FM does not qualify as an open narrowcasting service on the basis that it is targeted to a special interest group (persons aged 65 years and over) under Section 18(1)(a)(i) of the Act.
Is Vintage FM intended only for limited locations?
Vintage FM also submitted that its service is ‘limited by geography’.
For reception to be limited within the meaning of Section 18(1)(b)(ii) of the Act, the geographic coverage of the service needs to be very small. The Act cites ‘arenas or business premises’ as examples of limited locations. The narrowcasting guidelines give these further examples: hospitals, doctors’ surgeries, shopping centres, schools, pubs and clubs.
Vintage FM’s service area covers an area much more extensive than that contemplated by Section 18(1)(b)(ii) of the Act.
Accordingly, Vintage FM does not qualify as an open narrowcasting service on the basis that it is intended only for limited locations within the meaning of Section 18(1)(b)(ii) of the Act.
Does Vintage FM provide programs of limited appeal?
As the narrowcasting guidelines state, ‘a service will not be of limited appeal if it appears to be intended to appeal to the general public’.[6]This is because programs that are ‘intended to appeal to the general public’ are a hallmark of commercial broadcasting services.[7]
The narrowcasting guidelines further state that:
[P]rogramming which satisfies the ‘limited appeal’ criterion would not generally receive significant airplay on commercial broadcasting services.
…
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, not just individual programs.In other words, the more a service has the overall sound and ‘feel’ of a commercial broadcasting service by incorporating significant program components which are common to commercial radio, the less likely it is to be a narrowcasting service.[8]
The complainant submitted that ‘[a] format designed to appeal to 12.5% of the population we believe does not meet “limited appeal”’.
Vintage FM submitted that:
Vintage FM’s programming, which is primarily music, is not intended to appeal to the general public, it is intended to appeal to older listeners not targeted by commercial radio services.
As part of its assessment of whether or not Vintage FM provides programs of limited appeal, the ACMA considered the three recordings supplied by Vintage FM and the program log provided for a sample week. The ACMA assessed Vintage FM’s service as a whole withregard to the music playedon Vintage FM as well as any other program components of its service.
Music programming on Vintage FM
Vintage FM submitted that it ‘plays music from the 1940s, 50s & 60s, including many songs not programmed by similar mainstream radio formats’ and that ‘the majority of music played on Vintage FM is not programmed on commercial radio in Sydney’.
Vintage FM cited as an example its Party Mix request show which only plays music that is more than 40 years old. Vintage FM also supplied a comparison of a randomly selected hour of its programming with the playlist of ‘a commercial radio station closest in format to Vintage FM’. This ‘indicated that by far the majority of music played on Vintage FM (70%) is not programmed on commercial radio in Sydney’[9].
The ACMA’s assessment of the recordings and program logindicates that:
allof the music playedin the recordings was releasedin the 1940s, 1950s and 1960s
the majority of the music comprisedsongs that were either:
- by less popular or obscure artists, or notan artist’s major ‘hits’, for example:
Senor Wences’Deefecult For You Easy For Me
- songs that were ‘hits’ at the time of release, but have not had enduring popularity, for example:
Joe Carr’sPortuguese Washerwoman
Andy Stewart’sA Scottish Soldier
whilethere were some ‘hit’ songs by well-known artists, these were embedded in programming ofless popular music and represented a smallproportion of the overall music played
Vintage FM often plays series of songs without introducing or back announcing them, reducing the overall appeal of the music played.
The ACMA’s observations of the sample recordings and program log were consistent with the licensee’ssubmission that they are playing music ‘not programmed by similar mainstream radio formats’. An example of an hour of Vintage FM’s programming is at Attachment A.
Other program components on Vintage FM
In respect of other program components, Vintage FM submitted that:
Vintage FM does not contain news, traffic reports, competitions, time calls or local interviews, which are some of the major program elements contained in commercial radio services.
The recordings submitted by Vintage FM indicate that program components commonly associated with commercial radio services are either absent from or constitute only a small part of Vintage FM’s service. For example, the program components of interviews, sports coverage, station competitions, current affairs programs and regular traffic updates were absent from the recordings.
While the recordingsincludedsome advertisements, they were not as professional as those on commercial radio services and were far less frequent than would be expected on a commercial service. The ACMA observedone discussion of weather conditions (specifically about wind speeds and UV index) which was discussed in a conversational manner by the presenter and attributed to the sponsor.It also lacked a professional, commercial feel.
The ACMA considers that Vintage FM’s service does not ‘incorporat[e] significant program components which are common to commercial radio’.[10]
Conclusion
An assessment of the sample recordings and program log provided as part of this investigation indicates that there has been no significant change in Vintage FM’s service since Investigation 3140 (completed in February 2014). In that investigation, the ACMA concluded that Vintage FM was operating as a narrowcasting service as its ‘programming predominantly contains material which would have no real appeal for much of the general public.’[11]
Considering Vintage FM’s service as a whole, the ACMA’s view is that Vintage FM is operating as a narrowcasting service on the basis of the limited appeal of its programs. Vintage FM does play some hit songs from the 1940’s, 1950’s and 1960’s, and has minimal program components found on commercial radio services. However, the appeal of Vintage FM’s programming is limited by virtue of the following:
all the music it plays is from the 1940’s, 1950’s and 1960’s and is often obscure or less well-known music from those decades
Vintage FM presents music in a manner which operates to limit its appeal, in particular, by notindicating through announcements much of the music that it plays
other program components commonly heard on commercial radio services are not a feature of Vintage FM’s service.
Accordingly, Vintage FM’s service is ‘limited in reception’ on the basis that it ‘provide[s] programs of limited appeal’ within the meaning of Section 18(1)(b)(iv) of the Act.
As a result, Vintage FM is providing an open narrowcasting service, andis not in contravention of Section 133 of the Act; providing a commercial radio service without a licence.
Attachment A
Example of an hour of Vintage FM’s programming
ACMA Investigation Report – Vintage FM–20141
[1]See
[2]As listed in High power and low power radio open narrowcasters: programming and broadcasting data– available from
[3]The narrowcasting guidelines are available from
[4]The Broadcasting Services Clarification Notice 2001 (the 2001 Clarification notice) and the Broadcasting Services Clarification Notice 2002 (the 2002 Clarification notice). The latter was varied by the Broadcasting Services Clarification Notice 2001 Variation 2011 (the 2011 Variation).
[5]Narrowcasting guidelines at page 7.
[6]Narrowcasting guidelines at page 7.
[7]Section 14 of the Act relevantly provides:
Commercial broadcasting services are broadcasting services that provide programs that, when considered in the context of the service being provided, appear to be intended to appeal to the general public.
[8]Narrowcasting guidelines at page 8.
[9] The hour of programming was selected randomly by Vintage FM from a date prior to commencement of the investigation.
[10]Narrowcasting guidelines at page 8.
[11]Investigation Report 3140 at page 8.