Investigation Report No. BI-90

Summary
File no. / BI-90
Licensee / Canberra Christian Radio Ltd
Callsign / 1WAY
Type of service / Community Radio
Issues / Broadcasting advertisements
Date of broadcast / 3 September 2015
11-17 September 2015 and
11-19 September 2015
Relevant legislation / Paragraph 9(1)(b) [prohibition on broadcast of advertisements] of Schedule 2 to the Broadcasting Services Act 1992
Decision / Breach of paragraph 9(1)(b) of Schedule 2 [broadcast of advertisements]
No breach of paragraph 9(1)(b) of Schedule 2 [broadcast of advertisements]
Date Finalised / 13 April 2016

Opening

On 18 September 2015, the Australian Communications and Media Authority (the ACMA) commenced an investigation intoCanberra Christian Radio Ltd’scompliance with the licence condition at paragraph 9(1)(b) of Schedule 2 to the Broadcasting Services Act (the BSA).

Canberra Christian Radio Ltd is the licensee of 1WAY, a community radio broadcasting service licensed to represent the Christian community interest in the Canberra RA1 licence area.

The investigation was commenced in response to complaintsreceived by the ACMA on 13, 14 and 16 September 2015, which alleged that the licensee broadcast advertisements in relation to:

  • abook review,broadcast on 3 September 2015, with an employee of one of the licensee’s sponsors, the Harvest Bookshop (the book review);
  • a number of on-air competitions, broadcast in September 2015, which offered listeners the opportunity to win tickets to the Celtic Woman performance (the competitions); and,
  • a promotion for a performance by Celtic Woman which was broadcast in September 2015 without the appropriate sponsorship tag (the promotion).

Assessment

This investigation is based on submissions from the complainant and the licensee and a copy of the broadcasts provided to the ACMA by the licensee.

When assessing content against the BSA, 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 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 relevant regulation, in this case, paragraph 9(1)(b) of Schedule 2 to the BSA.

Issue 1: Did the licensee broadcast advertisements?

Relevant provisions of the Broadcasting Services Act 1992

The ACMA has investigated the broadcast against the following provisions of Schedule 2 to the BSA:

Schedule 2 - Standard conditionsPart 1 – Interpretation

2 Interpretation—certain things do not amount to broadcasting of advertisements

(1)For the purposes of this Schedule (other than paragraphs 7(1)(a), 8(1)(a), 9(1)(a), 10(1)(a) and 11(1)(a)), a person is not taken to broadcast an advertisement if:

(a) the person broadcasts matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter; and

(b) the person does not receive payment or other valuable consideration for broadcasting the advertising matter.

(2)For the purposes of this Schedule (other than paragraph9(1)(a)), the broadcasting by a community broadcasting licensee of:

(a) community information material or community promotional material; or

(b) a sponsorship announcement that acknowledges financial support by a person of the licensee or of a program broadcast on a service provided under the licence, whether or not the announcement:

(i)specifies the name and address of, and a description of the general nature of any business or undertaking carried on by the person; or

(ii)promotes activities, events, products, services or programs of the person; or

(c) material that announces or promotes a service provided under the licence, including material (whether by way of the announcement or promotion of activities, events, products, services or otherwise) that is likely to induce public support, whether financially or otherwise, or to make use of, the service or services provided under the licence;

is not taken to be the broadcasting of an advertisement.

[…]

Part 5 - Community broadcasting licences

9 Conditions applicable to services provided under community broadcasting licences

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

[…]

(b) the licensee will not broadcast advertisements, and the licensee will not broadcast sponsorship announcements otherwise than as mentioned in this clause;

[...]

Finding

The licensee did not breach paragraph 9(1)(b) of Schedule 2 to the BSA in relation to the broadcast of the book review.

The licensee breachedparagraph 9(1)(b) of Schedule 2 to the BSAin relation to the broadcast of the competition and the promotion.

Reasons

Under paragraph 9(1)(b) of Schedule 2 to the BSA, community broadcasting licensees are prohibited from broadcasting advertisements.

The BSA does not provide a definition for an ‘advertisement’. However, the ACMA’s Community Broadcasting Sponsorship Guidelines 2008(the Guidelines) includes the following information[2]:

In investigating complaints, ACMA has previously had regard to the following:

  • The High Court’s consideration of the meaning of the term ‘advertising’ in the context of the former Broadcasting Act 1942:

It would seem to be used in a broad general sense which would encompass an broadcast or telecast of material ‘designed or calculated to draw public attention’ to something … regardless of whether the broadcast or telecast ‘serves a purpose other than that of advertising’[3]

  • The plain English definition in the Macquarie Dictionary (Fourth Edition), which defines ‘advertisement’ as follows:

Advertisement: noun any device or public announcement, as a printed notice in a newspaper, a commercial film on television, a neon sign, etc., designed to attract public attention, bring in custom, etc.

Accordingly, an advertisement is potentially any broadcast that is intended to promote a product or service, regardless of whether payment in cash or in kind has been received by a licensee, or by any employee, agent, contractor or volunteer of the service.

Paragraphs 2(1) and 2(2) of Schedule 2 to the BSA provide a number of exemptions to the general prohibition on advertising on community broadcasting services.

Although a broadcast may contain material that has characteristics of an advertisement – that is, material that ‘promotes products or services’ – the Schedule 2 exemptions may apply such that the material is not considered to be advertising for the purposes of the prohibition under paragraph 9(1)(b).

In determining whether the licenseecontravened the licence condition prohibiting the broadcast of advertisements, the ACMA must consider:

  • whether the material broadcast was of an advertising character; and, if so
  • whether any of the exemptions under paragraph 2 apply.
  1. The book review

On 3 September 2015, the licensee broadcast an interview with Lynette, the owner of the Harvest Book Shop. The interview focussed primarily on Lynette’s review of The Dad Book by Jay Peyleitner, but also touched on Lynette’s ministry work. At the end of the segment, listeners were given the opportunity to enter the draw to win a copy of the book.

At the end of the book review, the presenter said:

‘… and of course you can also get those wonderful resources at the Harvest [Bookshop], so get on down there, just down near Aldi, have a coffee while you are there, they have a lovely café, just near there, right next door, just in the alley way there. It’s always wonderful to hear from you Lynette, always inspiring some of the books that you come in with, they are always great and I am thinking, I need that, I need that but I have to resist but definitely happy to give it away to somebody today. Now Lynette on the ministry side….’

The complainant is concerned that the interview promoted the Harvest Bookshop, a sponsor of 1WAY, and, because it was not adequately tagged as a sponsorship announcement, it constituted an advertisement.

Was the broadcast material of an advertising character?

The ACMA is satisfied that the broadcast’s references to the Harvest Bookshopwere of an advertising character because they raised the listeners’ awareness of the shop and the services it provides.

Are any of the exemptions applicable to the material broadcast?

As stated above, although material may be of an advertising character, its broadcast may be permissible if it falls under one of several exemptions provided in paragraph 2 of Schedule 2 to the BSA.

Paragraph 2(1) – matter not taken to be an advertisement

Paragraph 2(1) contains two elements, both of which are to be satisfied for the exemption to apply. The first of these elements (paragraph 2(1)(a)) requires that the material of an advertising character be broadcast as an accidental or incidental accompaniment to the broadcasting of other matter.

The ACMA is satisfied that the references to the Harvest Bookshop were not accidental, it is clear they were intended. Accordingly, the ACMA has considered whether the references to the Harvest Bookshop were an incidental accompaniment to the broadcast of other matter.

The ACMA’s Community Broadcasting Sponsorship Guidelines 2008 state:

Advertising material may be an ‘incidental accompaniment’ to the broadcast of other matter only if a reference to a product, service or organisation was secondary to the subject of the broadcast or occurred as a minor part of the broadcast. This may include casual reference to a product or service where that type of casual reference is likely to occur in the context of a discussion of some other thing[4].

The ACMA notes the following:

  • The book review component of the interview comprised 6 minutes and 55 seconds of the 8 minute and 48 second interview. The remaining time provided information about Lynette’s ministry works and provided instructions on how to win a copy of the book.
  • The focus of the broadcast was clearly the review of The Dad Book. The review offers a brief description of the author’s qualifications and describes the book and its contents in great detail, for example:
  • ‘a little hard book’;
  • ‘[the] front picture is a great picture of a Dad’;
  • ‘it talks about creating unforgeable moments with your kids’;
  • ‘dozens of suggestions of outings’;
  • ‘soul-satisfying ways to help us connect with our kids’;
  • The book is described as an ‘A-Z’ for dads and the review details examples of ‘A-C’. Lynette says: ‘I’ve just covered 3 letters but as I said, it goes right up to Z and just doesn’t stop with the really good ideas’; and
  • ‘it’s a very inexpensive book, one which you can just run down to the shop grab it and say ‘yes’’.
  • The Harvest Bookshop is only mentioned once in the broadcast and Lynette was not introduced as a representative of the Harvest Bookshop.
  • The price of the book is not mentioned,although it is referred to as ‘inexpensive’, nor is it suggested that the Harvest Bookshop is the only place it can be purchased (‘just run down to the shop’).
  • The contact details of the Harvest Bookshop were not given, and, while the broadcast noted that the Harvest Bookshop is near Aldi and a coffee shop, the exact location of the shop is not given.

It is considered that the ordinary reasonable listener would understand that references to the Harvest Bookshop were an incidental accompaniment to the broadcast of other matter, in this case, the book review.Accordingly, the first element of paragraph 2(1)(a) is met.

The second element of the exemption at paragraph 2(1)(b) is that the licensee does not receive any payment for the broadcast material.

In its submission to the ACMA, the licensee stated:

‘The Harvest Book Shop is a Christian store owned and operated by a local church to support its mission in the local community. As part of the Christian community it is also seen as part of 1WAY FM’s community of interest, and in wanting to support the station provides a weekly book review on our Thursday Café program. These book reviews are often linked to a gift for the week. As evident in the audio provided any link to the Harvest Book Shop is limited within both the promo and the interview focusing on the ministry and the book review. The Harvest Book Shop is also a station sponsor and is promoted accordingly with the sponsorship promo scheduled as part of our sponsorship process.’

While the ACMA understands the Harvest Bookshop is a sponsor of 1WAY, it is understood that 1WAY’s sponsorship does not extend to paying for the broadcast of the book review. The ACMA is satisfied that the exemption at paragraph 2(1)(a) applies in the circumstances and, as such, it is not necessary to consider the application of the exemptions at paragraph 2(2)(a).

The licenseedid not breach the licence condition at paragraph 9(1)(a) of Schedule 2 to the BSA in relation to the broadcast of the book review.

  1. The competition

From 11 to 17 September 2015, the licensee broadcast a number of on-air ‘giveaways’ which offered 1WAY listeners the chance to win a double pass to the Celtic Woman performance. The competition was promoted, throughout the week, by various program presenters. The tickets were donated to 1WAY by Ticketek, a station sponsor.

Upon request, the ACMA was provided with four of the on-air giveaway segments that aired over the relevant period. These broadcasts formed the basis of the ACMA’s investigation. The material assessed was broadcast on:

  • Example 1: 14 September 2015 at 1:55pm (4 minutes and 38 seconds)
  • Example 2: 14 September 2015 at 4:18pm (1 minute and 35 seconds)
  • Example 3: 14 September 2015 at 4:30pm (1 minute and 4 seconds)
  • Example 4: 16 September 2015 at 10:12am (1 minute and 16 seconds)

The program segments include information about the prize on offer, the date and location of the performance and instructions on how to enter the competition.

Example 1 is the longest broadcast and provides detailed information such as the cost of the tickets: “these tickets are premium tickets and worth about $300 for the pair, so it’s nothing to sneeze at”. Ticketek is referred to as:

‘I am looking forward to giving some tickets away because you can, as that beautiful voice just said, you can go to Ticketek and get tickets to go see Celtic woman or you could win them here […]’

None of the segments provided were broadcast with a sponsorship tag to indicate that Ticketek is a sponsor of 1WAY.

Was the broadcast material of an advertising character?

The ACMA is satisfied that example 1 contained material that was of an advertising character, namely, reference to Ticketek. The reference to Ticketek, albeit fleeting, promoted Ticketek and its services by advising listeners who the ticketing agent for the concert was.

Are any of the exemptions applicable to the material broadcast?

Paragraph 2(1) – matter not taken to be an advertisement

Reference to Ticketek in this context are not considered accidental as they form an intentional part of the announcer’s promotion of the ticket giveaway.

As noted in the discussion of the book review, above, material may be considered an ‘incidental accompaniment’ to the broadcast of other matter if a reference to an organisation was secondary to the subject of the broadcast or occurred as a minor part of the broadcast.

The broadcast material primarily consisted of the presenters promoting the competition and the appeal of the prize. Listeners were encouraged to enter the various draws and were provided details about how to win tickets. In Example 1 listeners were invited to enter by sending an SMS describing, in 10 words or less, as to why they wanted to attend the performance.

The focus of the program segments was the promotion of the competition. While details of the performance and Ticketek are provided by the announcers, they are referenced in order to promote the giveaway and to induce listeners to participate in the competition. The ordinary reasonable listener would understand that the references to Ticketek and the performance were incidental to the promotion of the competition.

Accordingly, the first element of the exemption at paragraph 2(1)(a) applies. The second element of the exemption (paragraph 2(1)(b)) requires that no payment or other consideration is exchanged for the broadcast material.

In its submission, the licensee states:

It is our endeavour to ensure a clear delineation between what is classified as sponsorship and the management of a gift (regardless of the source). To do this 1WAY FM observes the following principles in managing the delineation.

  • Where related to an interview the focus of the interview is on the artist or interview not the promotion, event or selling of the material. At the end of the interview the means and location for purchase may be mentioned but is not the focus of the interview.
  • Where a gift is linked to a sponsor (i.e. ticket to event, movie or conference) the 2 events are clearly separated with the sponsorship promotion scheduled to ensure it fits with the requirements of the code of practice, and the gift managed by the presenter with instructions to focus communications on the gift, not on the point of sale or gift provider.
  • On occasions where sponsors are mentioned it is generally unintentional, linked to the drawing of the prize winner and is restricted in nature.

[…]

1WAY FM was privileged to coordinate a sponsorship linked to the recent Celtic Women event in Canberra. This sponsorship promotion was arranged through Ticketek and included 10 double passes to give away to our listeners. As detailed above we endeavour to separate the ticket give-a-ways from the promoter.

While the ACMA notes 1WAY’s approach to handling gifts to the station, from the information provided, the ACMA is not satisfied that the licensee did not receive payment or other valuable consideration for the broadcast material. In in reaching this conclusion, the ACMA has had regard to the context of the giveaways being broadcast in conjunction with, and over the same period as, the promotions for the concert which, it appears from the information provided, formed part of the broadcast sponsorship package.

The ACMA is not satisfied that paragraph 2(1)(b) has been met. Accordingly, the exemption at paragraph 2(1) does not apply.

Paragraph 2(2)(a) – broadcasting of community information material or community promotional material

The Guidelines state that any broadcast that provides information about community events or promotes community services may fall into this category.[5] Material that promotes products, services or organisations that are likely to be of interest to members of the community whose interests are met by the licensee may be exempt as community information material under paragraph 2(2)(a).

In this case, while the promoted concert and the ticket giveaway may be of interest to the community, the commercial nature of the sponsorship arrangements and broadcast material is such that the exemption does not apply.

Paragraph 2(2)(b) –a sponsorship announcement that acknowledges financial support by a person of the licensee or of a program broadcast on a service provided under the licence