Investigation Report No. 2867
File No. / ACMA2012/1202Licensee / Multicultural Community Radio Association Limited
Station / 2OOO – Sydney, NSW
Type of Service / Community radio
Program / Croatian Program
Date of Broadcast / 16 August 2012
Issue / Broadcasting advertisements
Relevant Legislation / Clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
Date Finalised / 20 November 2012
Decision / Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
The complaint
On 28 August 2012, the Australian Communications and Media Authority (the ACMA) received a written complaint, dated 24 August 2012. The complainant alleged that Multicultural Community Radio Association Limited, the licensee of 2OOO, broadcast advertisements during the Croatian Program between 6.00 pm and 8.00 pm on 16 August 2012 (in breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 (the Act)).
The complainant sent another written complaint to the ACMA on 2 September 2012, alleging that 2OOO had broadcast an advertisement on behalf of Joseph Medcalf Funeral Services during the Croatian Program between 6.00 pm and 8.00 pm on 30 August 2012 (in breach of clause 9(1)(b) of Schedule 2 to the Act). A review of the Croatian Program broadcast between 6.00 pm and 8.00 pm[1] on 30 August 2012 did not reveal any announcements on behalf of Joseph Medcalf Funeral Services.
The service
2OOO has been the licensee of a community radio broadcasting service in the Sydney RA1 licence area since September 1992. Its current licence is due to expire on 14 September 2017.
The community interest of the licence, as allocated and last renewed, is the Ethnic - General community in the Sydney RA1 licence area. The licence area comprises Sydney and its surrounds north to Wisemans Ferry, west to Blaxland and south to Heathcote. 2OOO broadcasts programs in approximately 50 different languages each week.
The program
The Croatian Program is broadcast on 2OOO on Thursdays between 6.00 pm and 8.00 pm. The program is a mix of music and spoken content, including community information, fund raising and announcements on behalf of members of Sydney’s Croatian community.
Assessment
The assessment is based on:
· a written complaint, dated 24 August 2012, and received by the ACMA on 28 August 2012;
· a submission from 2OOO, dated and received by the ACMA on 19 September 2012, including a copy of the Croatian Program broadcast on 16 August 2012[2]; and
· a submission from 2OOO, dated and received by the ACMA on 15 November 2012, in response to the ACMA’s Preliminary Investigation Report No. 2867.
Issue: Broadcasting advertisements
Relevant provision of the Act
Schedule 2 – Standard conditions
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 …
[...]
Part 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 […] 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 the 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 the 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 services provided under the licence;
is not taken to be the broadcasting of an advertisement.
Complainant’s submissions
The complainant submitted that the broadcast of the Croatian Program of 16 August 2012 contained advertisements for the following:
· Adriatic Adventure Tours and Travel;
· Pronto Smallgoods and Butchery;
· Rainbow Aluminium Windows and Doors;
· Sky Air Service;
· Dalma Excavation;
· Dimarco Monuments;
· Studio Odzak Video Services;
· Josip Kasunic Cleaning Services;
· Folcloric Dance Group ‘Bosna’; and
· Ruzica Kelava Decorations for Weddings and Cakes.
Licensee’s submissions
2OOO provided information about the categories of programs on its service and specific information about the Croatian Program.
2OOO’s financial members are Community Broadcasting Groups (usually representing a language group), which are able to access airtime through their membership.
An Access Program is a program produced by an individual, organisation or community group who/which is not a Community Broadcasting Group (or affiliated with a Community Broadcasting Group) and not a financial member of 2OOO.
The fee to broadcast an Access Program is higher than the fee for the broadcast of a program by a Community Broadcasting Group.
Access Program providers are responsible for arranging sponsorship, entering into sponsorship agreements and collecting sponsorship money for sponsorship announcements broadcast during their allocated airtime.
2OOO provided a copy of the Access Broadcast Contract (Contract) dated 2 May 2002 between 2OOO and the then convenor of the Croatian Program, referred to in the Contract as the ‘Access User’. Under the Contract:
(c) The Access User agrees to abide by all [2OOO] programme [Standards], Station rules and guidelines published by the Station from time to time. Any breach of the programme guidelines may cause immediate suspension of programmes at [2OOO’s] discretion. Where sponsorship announcements are included in the programme, particular notice should be taken of the statutory limit of 5 minutes per hour for sponsorship announcements and the requirements that each paid (money or in kind) announcement must refer to the advertiser as having ‘sponsored’ the announcement.
[. . .]
(f) All sponsorship announcements broadcast by the Access User must be in accordance with the Codes of Practice for Community Broadcasters [ACMA and Community Broadcasting Association of Australia] [and 2OOO’s] Guidelines for Convenor & Broadcasters to ensure compliance with the [Act].
[. . .]
A breach of the [the relevant provisions of the Act] by the Access User is a breach of this agreement and will result in immediate suspension of the program or termination of the agreement. At the discretion of [2OOO], the suspension may be permanent and lead to actual termination of the program.
Finding
The licensee broadcast advertisements on 16 August 2012, in breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.
Reasons
What is an advertisement?
The Act does not contain a definition of ‘advertisement’. In investigating complaints, the ACMA has previously had regard to the following.
· The High Court considered 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 any 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 Macquarie Dictionary 4th Edition defines ‘advertisement’ as:
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 an employee, agent, contractor or volunteer of the service.
Croatian Program broadcast on 16 August 2012
A review of the Croatian Program broadcast between 6.00 pm and 8.00 pm on 16 August 2012 reveals that the following announcements were broadcast.
At 7.46 pm / We are all familiar with the well-known business firm Rainbow Aluminium Windows and Doors, meaning windows and doors and everything else you might need in building and construction. Rainbow Aluminium Windows and Doors is the firm that has it all with its director [. . .] who is well known all over Australia for his philanthropic endeavours. For all your specialised and first class services and construction of smaller and bigger premises you can Rainbow Aluminium Windows and Doors director [. . .] on phone number 9644 9036 or just come to 107 Carlingford Street, Sefton. This firm has been in business for almost five decades. You can use our services if you just call Rainbow Aluminium Windows and Doors on 9644 9036. Director [. . .] and his helpful staff will be happy to assist you.At 7.47 pm / Adriatic Adventure Croatian Travel Agency at 8 Edensor Park Plaza, Edensor Park, telephone number 9823 0011. Use the special prices and don’t miss out on visiting your homeland of Croatia at these very affordable prices. We also have the best deals for car rental while there. And we have a great discount for cruises around the Pacific as well as the Adriatic Sea. You can take a cruise 8 days 7 nights visiting Croatian islands for $950. And the Pacific Islands price beginning at $890 per person in a four bunk cabin, food and entertainment included. For all information call well-known [. . .] or her helpful staff on 9823 0011. Croatian Travel Agency Adriatic Adventures has these prices until December this year 2012. So please call and we’ll secure your seat for your travel.
At 7.48 pm / The well-known firm Dalma Pty Ltd has all the equipment needed for all construction work. We can perform any work from demolition of an old house to building whatever you wish. For all your needs, just call [. . .] on [. . .] and he’ll make sure, in his very professional way, all your needs are met so just call him on [. . .].
At 7.50 pm / Travel Agency Sky Air Service first floor 13 Flushcombe Road, Blacktown, close to the train station, phone number [. . .]. It also has very affordable prices from Sydney to Zagreb, Split, Dubrovnik, Zadar and Sarajevo. Combination Etihad Airways and Croatia Airlines but depending on availability, call us to check the dates you want. We also have good deals from Zagreb to Sydney. Call the helpful staff include [. . .] or in Melbourne 7/24 Albert Road, South Melbourne on [. . .]. Just ask for [. . .] or [. . .]. So we’ll make sure you enjoy it. That was a message from [. . .].
At 7.51 pm / If you want to have a new kitchen made out of marble or granite stone, or if you want a beautiful tombstone, just call Dimarco Monuments at 8 Rose Crescent, Regents Park call [. . .] on [. . .] or [. . .] on [. . .]. You can call in Italian or English or, of course, Croatian. We are here to help with all your needs.
At 7.52 pm / Pronto is a well-known butchery which is at 7 Quest Avenue, Carramar, telephone number 9724 0460. Pronto has the first class fresh meat as well as smallgoods. You can get fresh roast from Thursday to Sunday which is beautifully roasted but for lamb and pig suckling roast you need to place orders a few days ahead. And also all types of smallgoods including prosciutto, speck [pancetta] and kranski and other sausages for BBQ as well as anything else you might wish to have in your home. Everything is prepared in traditional ways. Just come to the butchery or call them on 9724 0460. You will be met by helpful staff who will make sure you get all you want.
Each announcement is clearly designed to attract public attention to the good or service described in the announcement and to bring custom to the related business and is therefore an advertisement.
Having established that the announcements are advertisements, it is necessary to consider whether any of the exemptions under clause 2(1) or 2(2) of the Act are applicable.
2OOO is taken to have broadcast advertisements, as clause 2(1) of the Act is not applicable:
(a) the announcements were not an accidental or incidental accompaniment to the broadcasting of other matter on the Croatian Program; and
(b) the Croatian Program provider received payment or other valuable consideration for broadcasting the announcements (based on 2OOO’s practice of Access Program providers having responsibility for the sale of sponsorship within their allocated airtime).
Further, 2OOO is taken to have broadcast advertisements, as clause 2(2) of the Act is not applicable. The announcements:
(a) were not community information material or community promotional material;
(b) did not acknowledge financial support of the licensee or a program;
(c) did not announce or promote the service provided under the licence, including material that is likely to induce public support, whether financially or otherwise, or to make use of, the services provided under the licence.
Consequently, 2OOO is taken to have broadcast six advertisements between 7.45 pm and 7.55 pm during the Croatian Program on 16 August 2012.
Action taken
In its response to the preliminary breach finding, 2OOO stated that:
· it had conducted an internal investigation in relation to the broadcast of the Croatian Program on several dates, including 16 August 2012, and had also reached the conclusion that ‘there was a breach of [the Act], clause 9(1)(b) of [. . .] Schedule 2’;
· it has a ‘zero tolerance’ policy for breaches of its Sponsorship Policy, it has suspended the Croatian Program pending finalisation of the ACMA’s investigation and 2OOO Management has recommended to the 2OOO Board that the program be terminated;