Investigation Report No. 2985
File no. / ACMA2013/286Licensee / Sunshine FM Radio Association Inc.
Station / 4SFM Nambour,QLD
Type of service / Community radio
Name of program / Interview with band, McGuiness & Co
Date of broadcast / 22 February 2013
Issue / Broadcasting advertisements
Relevant legislation / Clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992
Date Finalised / 24 April 2013
Decision / Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements]
The complaint
On 24 February 2013, the Australian Communications and Media Authority (the ACMA) received a complaintthat the licensee of 4SFM, Sunshine FM Radio Association Inc., broadcast an advertisement during an interview with members of the band, McGuiness & Co, at approximately 4.25 pm on 22 February 2013.
The service
4SFM has provided a community broadcasting service to represent the mature age community interest in the Nambour RA2 licence area since 9 December 2002.Its current licence is due to expire on 8 December 2017.
The Nambour RA2 licence area comprises the local government areas of Caboolture, Caloundra and Maroochy in Queensland.
Assessment
The assessment is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee.
Broadcasting advertisements
Relevant provisions of the Broadcasting Services Act 1992
Schedule 2 – Standard conditions
Part 5 – Community broadcasting licences
9Conditions 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 theperson; 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 submission
The complainant stated that during an interview with members of the band, McGuinness & Co,4SFM promoted the band and its involvement with the Titanic 2 project promotion. The complainant noted that the band's latest album was also promoted heavily.
Licensee’s submission
On 21March 2013, 4SFM provided a submission, explaining that McGuinness Co is an Irish band based in the Sunshine Coast, which plays regularly at venues throughout the area, but mainly in a local Irish pub.
4SFM stated that, in 2012 the band came to the attention of Mr Clive Palmer, who engaged the band for a performance at the Titanic 2 project promotion. The band was engaged to perform as part of the world-wide promotion for the project, including in Macau, New York and London. 4SFM explained that McGuinness & Co, being local and with members aged from 47 to 70 years fit the broadcaster’s demographic and deserved recognition through the local community radio station. 4SFM stated that:
The whole purpose was to give credit to these older Australians and inform our listeners of the persistence of these particular performers at an age when most are giving up.
In regard to the material broadcast, 4SFM stated:
We have listened to the recoding of the broadcast and although the presenter mentioned their CD after the track was played, and the band had left the studio, there was no over-riding commercial intent and therefore we feel we have not breached any regulations, in fact, we believe we did what out charter says we must do, and that is promoting the efforts of seniors throughout the Coast, particularly in the field of music and entertainment.
Finding
The licensee broadcast an advertisementon 24 February 2013 and, accordingly, breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.
Reasons
What is an advertisement?
The Broadcasting Services Act 1992(BSA) does not provide a definition for an ‘advertisement’. In investigating complaints, the 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 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’.[1]
- The Macquarie Dictionary (Fourth Edition), defines ‘advertisement’ as:
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.
McGuinness & Co interview broadcast on 24 February 2013
A review of the program material in question shows that it contained three parts: an interview with the band McGuinness & Co, followed by broadcast of a McGuinness & Co song titled ‘The Spirit of Yesterday’ and finally the 4SFM announcer back announcing the songand explaining how listeners can obtain copies of McGuinness & Co’s latest album. The duration of the program material is 11.30 minutes.
The interview
The program material commences with the 4SFM announcer welcoming the band and introducing the band members. The band members talk about their ages, the age of the band, its changing line-up and the type of music it plays. The announcer goes on to talk about the Titanic 2project promotions and asks how McGuinness Co was chosen to be a part of it. The band members explain how they were initially asked to play at one event, which was expanded to include other events after the owner became impressed with the band. The band members then talk about their experiences playing at the events, the locations and venues they played at and their plans for the near future. The band members also explain that they wrote and recorded a song about these experiences, which was chosen to be part of the project promotions.
The announcer mentions that McGuinness& Co is a local band that is doing well overseas and asks each band member to talk about their most memorable experiences in being a part of the project promotions. The announcer mentions that the band will shortly be leaving Australia for the next part of the promotions and where they are expected to play. The announcer wraps up the interview by congratulating the band on its success.
The song
The announcer states ‘here’s a track from their latest CD’, and plays a song titled ‘The Spirit of Yesterday’. The announcer back announces the song and says:
Those were the boys from McGuinness & Co, with the title track from their new CD, ‘The Spirit of Yesterday’. Their new CD, ‘The Spirit of Yesterday’, will be available on iTunes and all the download sites from Tuesday the 5th of March and also from the boy’s website, which is all the w’s, McGuinnessandCo dot com dot au.
The announcerspells out the website address and states,‘and very proudly they are, Sunshine Coasts own.’
A review of the program material shows that it contained material designed or calculated to draw public attention to, and to bring in custom for, the band McGuinness & Co. Consequently, this material constitutes an advertisement.
Having established that the broadcast contained an advertisement, it is necessary to consider whether any of the exemptions under clause 2(1) or 2(2) of Schedule 2 to the BSA are applicable.
The exemption at clause 2(1) is not applicable in this instance, as:
- the licensee did not broadcast matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter.
That being the case, it is not relevant if the licensee received payment or other valuable consideration for broadcasting the advertising matter.
Further, the exemptions at clause 2(2) are not applicable in this instance, asthe material broadcast:
- was not community information or community promotional material;
- did not constitute a sponsorship announcement, as it did not contain acknowledgement of financial support of the licenseeor of the program; and
- did not announce or promote the 4SFM service, including material that was likely to induce public support, whether financially or otherwise, or to make use of, the 4SFM service.
Accordingly, the licensee is taken to have broadcast an advertisement during an interview with the band McGuinness & Co, on 22 February 2013.
Action taken
4SFM advised that the ACMA’s investigation report and finding have been discussed with the presenter concerned and that the presenter was made fully aware of the mistake.4SFM also advised that is has implemented a new procedure for live-to-air interviews that requires the nature and content of the interview to be discussed and approved by the Station Manager before the program goes to air. 4SFM will also circulate general instructions regarding interviews and sponsorship announcements to all presenters.
These measures are considered to be an adequate response to the breach of clause 9(1)(b) of Schedule 2 of the Actand no further action will betaken at this time.
ACMA Investigation Report – 4SFM – Compliance with licence condition1
[1]Australian Capital Television Pty Ltd and the State of New South Wales v The Commonwealth (1992) 177 CLR 106 at 166.