Investigation report no. BI-303
SummaryLicensee / Radio 6PR Perth Pty Ltd
Station / 6PR
Type of service / Commercial—radio
Name of program / 6PR Mornings
Date of broadcast / 14 September 2016
Relevant code / Commercial Radio Australia Codes of Practice & Guidelines 2013
Date finalised / 21 April 2017
Decision / Breach of code 5.5 [complaints handling]
Background
In March 2017, the Australian Communications and Media Authority (the ACMA) commenced an investigation under section 170 of the Broadcasting Services Act 1992 (the BSA) intothe handling of complaints made to Radio 6PR Perth Pty Ltd (the licensee) in relation to asegmentof6PR Mornings broadcast on 14 September 2016.
The ACMA received a complaint alleging that the licensee failed to respond to three complaints made under the Commercial Radio Codes of Practice & Guidelines 2013 (the Codes) about the same issue. The complaints were made via the telephone and viafax on 14 September 2016 and via an online electronic complaint formon 16December 2016.
The ACMA hasinvestigatedthe licensee’scompliance with code 5.5 [complaints handling] of the Codes.
The complaints
The initial complaintconcerned an interview on 6PR Mornings broadcast on 14 September 2016 and raised concerns about code 1.1(e) of the Codes. The subsequent complaints also asserted a complaints handling issue by the licensee.
The ACMA has limited its investigationto the complaints handling aspect of the complaint.The investigation has not considered code 1.1(e) of the Codes as a complete copy of the broadcast of 6PR Morningsof 14 September 2016 was not available, rendering it difficult for the ACMA to make a finding on compliance with this aspect of the Codes.
Extracts of the complaints made to the ACMA about the licensee are at Attachment A.
Assessmentand submissions
When assessing content, the ACMA considers the meaning conveyed by the material, including the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. This is assessed according to the understanding of an ‘ordinary reasonable’ listener or viewer.
Australian courts have considered an ‘ordinary reasonable’ listener or viewer to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[1]
Once the ACMA has ascertained the meaning of the material that was broadcast, it then assesses compliance with the Codes.
This investigation has taken into account the complaints (at Attachment A) and submissions from the broadcaster. Other sources are identified in this report where relevant.
Issue: Complaints Handling
Relevant Code provisions
Complaints
5.1For the purposes of this Part, a complaint is an assertion:
(a)made in writing by letter or fax by a person who signs the letter or fax and provides his or her name and address or, where the licensee has technological capacity, by an online electronic complaint form in which identifying information of the complainant is required;
(b)to a licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee;
that the licensee has broadcast matter which, in the opinion of thecomplainant, breaches these Codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.
5.2The licensee must make appropriate arrangements to ensure that complaints are received and recorded by a responsible person during normal office hours.
Advice in Writing
5.5Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.
Finding
The licensee breached code 5.5 of the Codes.
Reasons
Having made a number ofattempts to make a valid complaint under the Codes, the complainant made initial contact with the ACMA on 12 December 2016. ACMA staff followed up with enquiries to the licensee about itsapparent lack of response, to which it was discovered that due to a number of circumstances, including the publication of the incorrect fax number on the licensee’s own website, a valid complaint had failed to reach the licensee.
In its communications to the ACMA on 15 December 2016, the licensee agreed to consider the complaint as if it had been made within the specified time period under the Codes, if the complainant completed the online complaints form on the 6PR website.[2] The complainant then completed the form on 16December 2016regarding alleged breaches of code 1.1(e).
On 17 February 2017, the complainant again contacted the ACMA to indicate that he had not received a response to his complaint made on 16 December 2016.
In its submissions to the ACMA, the licensee statedthat ‘internal technical errors and oversights resulted in the complaint not being received and responded to in a timely fashion’.The licensee advised that ithas taken action to address the deficiencies in its complaint handling practices and systems and that it ‘does not expect a similar incident to occur in future as a result’.
Code 5.5 requiresthat the licensee use its best endeavours to respond substantively to complaints within 30business days of receipt. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, code 5.5 requires that the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint. As such, code 5.5 creates an unqualified obligation on licensees to respond substantively to a complaint made in accordance with code 5.1.
Accordingly, by failing to acknowledge receipt of the complaints and respond substantively to the complainant within the timeframe specified in code 5.5, the licensee breached code 5.5 of the Codes.
Attachment A
Complaint
Extract of the complaint to the ACMA dated 12 December 2016:
My Complaints to the station (also on 14th September 2016).
[…]
I then asked how to formally complain and was directed to this webpage:
I downloaded and filled out the form and then faxed it to the Queensland number provided. The fax machine recorded an error in transmission of the fax. I then called 6PR's Brisbane sister station (where the fax machine appeared to be located) and they advised that they had no fax machine and were surprised that their Perth sister station were directing complaints to them anyway!
I was given an alternate number by them to fax to which I did. I also tracked down the email addresses of 6PR's News Editor and Commercial Manager from their contact page ( and emailed them a copy of the form too.
No reply to date has been received hence my writing to you.
Extract of the complaint to the ACMA dated 17 February 2017:
Further to our conversation this morning I am writing to confirm that I have still yet to receive a reply from 6PR (or their owners) further to my submission via their online complaints form (as per the link supplied by your office at your office's request) on 16th December 2016.
Please note this was the second attempt to complain after my original attempt via fax and email […] on 14th September [2016] was also ignored.
ACMA Investigation report—6PR Mornings broadcast on6PR on 14 September 20161 of 5
[1]Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.
[2]