Investigation Report No. 2407
File No. / ACMA2010/690Licensee / Wiseguy Pty Ltd
Station / Territory FM 98.7
Type of Service / Open narrowcast radio
Relevant Legislation / Section 18 of the Broadcasting Services Act 1992;
Part 4 of the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998;
Section 113 of the Radiocommunications Act 1992.
Date Finalised / 29 July 2010
Decision / No breach of Part 4 of the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998.
No breach of section 113 of the Radiocommunications Act 1992.
The complaint
In March 2010 the Australian Communications and Media Authority (the ACMA) received a written complaint regarding an open narrowcast radio station, Territory FM 98.7 (Territory FM), broadcasting in the Alice Springs area of the Northern Territory. The complainant alleged that the licensee of Territory FM, Wiseguy Pty Ltd (the licensee), was not providing an open narrowcast service.
Context
Alice Springs licence area
The latest census figures available from the Australian Bureau of Statistics indicate that in 2006 there were 23,892 persons usually resident in the local government area of Alice Springs[1].
Radio services in Alice Springs
Other than Territory FM, the following radio services are available in the Alice Springs licence area:
On-air ID / Frequency / Type / FormatSUN-FM / FM / regional commercial / hybrid[2]/music-oriented(Top 40/rock)
8HA / AM / regional commercial / hybrid/music-oriented (popular/commercial)
Radio TAB / FM / open narrowcast / racing radio
8CCC / FM / community - general / hybrid
8KIN / FM / community - indigenous / hybrid
8ABCFM / FM / national / classical music
8ABCRN / FM / national / Radio National (journalism and the arts)
8JJJ / FM / national / music-oriented (alternative)
8PNN / FM / national / news
8AL / AM / national / ABC local (hybrid)
The service
Territory FM is a high powered open narrowcast radio service that broadcasts throughout the Alice Springs licence area. Some of its programming is sourced directly from the Darwin-based community radio station Territory FM 104.1[3].
In 2009 the ACMA investigated the service being provided by the licensee and determined that, at the time relevant to the investigation, the licensee was not providing an open narrowcasting service. As a result of this investigation, the licensee changed the format of the service to one of predominantly country music. After this format proved unpopular with listeners the programming of the service was changed in October 2009 to its current format, which is based around music from the 1950’s and 1960’s. A breakdown of Territory FM’s weekly programming schedule is at Attachment A.
The programming elements of the service provided by Territory FM can be summarised as follows:
Music
The predominant programming element, taking up approximately 85% of airtime each week. Music is from the 1950’s and 1960’s. The programs are not hosted and the tracks are not identified in any way. The music tracks are interspersed with station identifications and occasional advertisements only.
Territory Talk (every week day from 9.00 am – 11.00 am)
Hosted by Daryl Manzie, former Northern Territory politician and policeman. A program devoted to news, current affairs and issues affecting the Northern Territory, including interviews with local identities
Nights with Alice Cooper (every week night from 8.00 pm – 10.00 pm)
Hosted by rock singer Alice Cooper. Offbeat news, celebrity gossip and music from classic rock albums.
Imparja Television News (every week night from 6.00 pm – 6.30 pm)
A live ‘simulcast’ of the news bulletin broadcast by Imparja Television. International, national and local news, sport and weather.
Territory Sport (every Saturday from 8.00 am – 10.00 am)
Local, national and international sport. Discussion and results from sporting experts and critics.
State/Territory Parliament Question Time
Question time broadcast direct from Parliament at irregular times throughout the year (depending on sitting days) for a total of approximately 35 hours per year.
Assessment
The assessment is based on:
- sample CDs of Territory FM broadcasts, recorded between 4 – 6 May 2010;
- submissions from the complainant; and
- submissions from the licensee.
Complainant’s submissions
As stated above, the complainant has alleged that the licensee is not providing an open narrowcast service. The complainant has stated that:
the service includes a three-hour talkback program originating from Darwin and a wide variety of music ranging from early Rock ‘n’ Roll to music currently in the ARIA charts. The service also carries the program “Nights with Alice Cooper” which is syndicated to broadcasters nationwide.
We note further that the station’s web page (copy enclosed) invites listeners to “name four favourites from the fifties and sixties you’d like us to play.”
Licensee’s submissions
In response to the ACMA’s request for comments the licensee, in a letter dated 4 June 2010, stated that Territory FM now had a ‘wholly 50s and 60s music format’, and that:
This Golden Oldies music format now comprises 87% of total programming on Territory FM Alice Springs, and as you will hear from the audio samples provided by us, is made up primarily of music recorded between 45 and 55 years ago!
This includes music of dubious audio quality, extended tracks, and lesser known music from that period, music by the way that was originally enjoyed by young people who are now likely to be in their 60s and 70s!
There can be no doubt in my mind that this music format is of limited appeal for the reasons I have already put forward.
As for the complainant’s claim that the Territory FM website now invites listeners to “name four favourites from the fifties and sixties you’d like us to play”, that only further illustrates that we are genuine in sticking to that kind of music.
[…]
The “Nights with Alice Cooper” program, which makes up only 5.9% of total programming also features music of limited appeal, including obscure album tracks, many from the 60s.
[…]
We make no apologies for retaining Territory Talk, which makes up 5.9% of our total programming, as it provides information about the Northern Territory as a whole, including Northern Territory Parliament Question Time.
This too is of limited appeal, especially as it does not concentrate solely on Alice Springs issues.
[…]
It is our considered opinion that the music appeals to a niche audience base and is confirmed by the requests the station receives asking for a return to the original 70’s, 80’s and 90’s music.
Territory Talk is targeted at a Territory wide audience not specific to Alice Springs or Centralia but rather the entire Territory, by comparison the local commercial stations and national broadcasters cater to specifically Alice Springs so it is our considered opinion it provides an alternative and has niche appeal.
Nights with Alice Cooper is a syndicated program of 2 Hours per weeknight duration, this program features predominantly 1960’s and 1970’s classic album rock, the music selection is album track based and rarely features single (hit) releases from the artists featured. It is relevant to note only 20 radio stations in Australia feature this program. It is a very specific non-commercially oriented program. It certainly has hard core followers but it is narrow in its appeal.
Issue 1: Whether the licensee of Territory FM is providing an open narrowcasting service
Relevant legislation
Open narrowcasting services are defined at section 18 of the Broadcasting Services Act 1992 (the BSA):
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 provided 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.
Finding
The licensee of Territory FM, broadcasting in the Alice Springs area of the Northern Territory, is providing an open narrowcasting service as defined at section 18 of the BSA.
Reasons
Whether the service qualifies as an open narrowcasting service is discussed below against each of the criteria at section 18 of the BSA. In order to qualify as an open narrowcasting service, the service needs to satisfy the criterion at section 18(1)(b) and at least one of the criteria listed at section 18(1)(a).
Open narrowcasting services are broadcasting services:
18(1)(a)(i) whose reception is limited by being targeted to special interest groups
A special interest group is a specific group of people that share and represent an interest that may be organised and networked and which may have its own perceptible culture. However, a special interest group may also exist without formal associations[4].
The ACMA regards the term ‘special interest groups’ as including, but not confined to:
- specific groups of people that share and represent an interest that is organised and networked;
- groups that are recognisable by a representative organisation such as a professional or sporting association;
- ethnic/language groups; and
- groups with particular information requirements such as business analysts or tourists.
Generally, services with a music-based format would not meet the narrowcast criteria on the basis that their reception is limited by being targeted to ‘special interest groups’. Fans of music from the 1950’s and 1960’s could be people from any socio-economic, cultural, religious, ethnic or gender background.
In addition, people who listen to such music cannot be distinguished from the rest of the population to the extent that they could be classified as a special interest group.
It should also be noted that the licensee has not indicated that, in its opinion, the reception of the service is limited by being targeted to special interest groups.
The service therefore does not satisfy this criterion.
18(1)(a)(ii) whose reception is limited by being intended only for limited locations, for example, arenas or business premises
The service is broadcast in the Alice Springs area and its reception is therefore not limited by being intended only for limited locations.
The service therefore does not satisfy this criterion.
18(1)(a)(iii) whose reception is limited by being provided during a limited period or to cover a special event
The service is broadcast continuously and permanently and its reception is therefore not limited by being provided during a limited period or to cover a special event.
The service therefore does not satisfy this criterion.
18(1)(a)(iv) whose reception is limited because they provide programs of limited appeal
When considering the correct category for a service, the programming must be looked at in its entirety.
Information supplied by the applicant gives the following breakdown of programming elements for a standard week:
Music (50’s and 60’s)85.1% (143 hours)
Territory Talk5.9% (10 hours)
Nights with Alice Cooper5.9% (10 hours)
Imparja Television News1.5% (2½ hours)
Territory Sport 1.2% (2 hours)
Parliament Question Time0.4% (approximately 40 minutes on average)
As can be seen from the above breakdown and the sample weekly program schedule at Attachment A, music is the dominant element. The sample CDs and a sample one week music playlist indicates that , with the exception of ‘Nights with Alice Cooper’, the music played is from the 1950s and 1960s. While some of the music played during ‘Nights with Alice Cooper’ is from a later period, most of the songs played during this program are album tracks rather than singles from the Top 40.
The format does not include elements common to mainstream commercial radio such as regular hourly news bulletins, live announcers, time calls, identification of the songs and artists featured, weather reports or talkback.
The question to be asked is whether the programming in the context of the overall service being provided appears to be intended to appeal to the general public or alternatively is of limited appeal. The delegate is of the view that the service, based on its current format, is a service providing programs of limited appeal rather than a service intended to appeal to the general public. The combination of features that have informed this view is as follows:
- The service features more than 85% of programming comprised of music from the ‘50s and ‘60s with no live announcer or identification of either artist or song. While some songs from the ‘50s and ‘60s may be popular within the broader community, it is considered that programming dominated by such music would only appeal to a small minority of genuine fans, particularly given that the spoken elements of this 50s and 60s music programming are limited to station announcements and advertisements.
- Music from the 50s and 60s would be more likely to appeal to those listeners over a certain age who can remember songs from this period. It is therefore relevant to note that information obtained from the website of the Australian Bureau of Statistics indicates that the Northern Territory has a far more youthful population than the rest of Australia. For example, as at the end of June 2000 the Northern Territory had the highest proportion of people aged 14 years and under and the highest proportion of people aged 20-34 of any Australian State or Territory. In contrast, the Northern Territory had the lowest proportion of people aged 65 years and over. These figures reveal that the service provided by the licensee would be less likely to be of appeal in the Northern Territory than it would be in other parts of Australia, further indicating that the service does not appear to be intended to appeal to the general public and is providing programs of limited appeal.
- The inclusion of non-music programming such as ‘Territory Talk’, the Imparja News and Saturday morning sport would broaden the overall appeal of the service to a degree. However, the inclusion of what is currently a small percentage of non-50s/60s music programming(less than 15% of air time) would not broaden the appeal of the format to the extent that it would appear to be intended to appeal to the general public within the Alice Springs area.
The service therefore satisfies this criterion.
18(1)(a)(v) whose reception is limited for some other reason
The licensee did not advance any other reason as to why the reception of the proposed service would be limited.
The service therefore does not satisfy this criterion.
18(1)(b) that comply with any determination or clarification under section 19 in relation to open narrowcasting services
In 2001, the Australian Broadcasting Authority made the Broadcasting Services Clarification Notice 2001 and in 2002, the Broadcasting Services Clarification Notice 2002. These were both gazetted during 2002. The purpose of these notices was to clarify the definition of certain types of open narrowcasting radio services. However, a service of the type provided by the licensee is not referred to in either of these notices.
This criterion is therefore not applicable.
As the service satisfies the criterion at section 18(1)(a)iv) of the BSA and as the criterion at section 18(1)(b) of the BSA is not applicable, the service is an open narrowcasting service within the meaning of the BSA.
Issue 2: Whether the licensee of Territory FM is contravening a condition of its licence
Relevant legislation
The Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998
Section 4.3 of the Radiocommunications Licence Conditions (Broadcasting Licence) Determination No. 1 of 1998 (the LCD) states, in part, that:
4.3 Operating requirements — open narrowcasting services
If the licensee operates a narrowcasting service station to provide an open narrowcasting service, the licensee:
(a)must only operate the station to provide an open narrowcasting service; and […]
The Radiocommunications Act 1992
Section 113 of the Radiocommunications Act 1992 (the Radcoms Act) states:
113 Contravention of conditions
(1)A person is guilty of an offence if:
(a)an apparatus licence relates to the person; and
(b)the person engages in conduct; and
(c)the person’s conduct contravenes a condition of the licence.
Penalty:100 penalty units.
(2)Subsection (1) does not apply if the person has a reasonable excuse.
Note:A defendant bears an evidential burden in relation to the matter in subsection(2) (see subsection 13.3(3) of the Criminal Code).
(3)In this section:
engage in conduct means:
(a)do an act; or
(b)omit to perform an act.
Finding
The licensee of Territory FM, broadcasting in the Alice Springs area of the Northern Territory:
- is complying with subclause 4.3(a) of the LCD by only operating the station to provide an open narrowcasting service; and therefore
- has not contravened a condition of its licence and is not guilty of an offence under section 113 of the Radcoms Act.
Reasons
The licensee of Territory FM is licensed to provide an open narrowcasting service under a class licence in the broadcasting services bands part of the radiofrequency spectrum.
The licensee holds the necessary apparatus licence to provide a high power open narrowcasting service. The type of apparatus licence held by the licensee in question falls within the scope of section 4.3 of the LCD and is therefore subject to the operating requirements within that provision.
As stated earlier in this report under Issue 1, a finding has been made that the Territory FM service satisfies the criterion at section 18(1)(a)(iv) of the BSA and is accordingly an open narrowcasting service. As the licensee of Territory FM is licensed to provide a narrowcasting service, it has not contravened section 4.3(a) of the LCD and is not guilty of an offence under section 113 of the Radcoms Act by contravening a condition of its apparatus licence.
ATTACHMENT A
Table 1: Territory FM 98.7weekday programs
Times / Program / Program descriptionMidnight – 9:00 am / Music / Music from the 1950’s and 1960’s (unhosted)
9:00 am – 11.00 am / Daryl Manzie Territory Talk / Hosted by Daryl Manzie, former Territory Minister, Attorney General, Politician, Policeman and Cyclone Tracy survivor. Current affairs and interviews relating to the Northern territory.
11:00 am – 6:00 pm / Music / Music from the 1950’s and 1960’s (unhosted)
6:00 pm – 6:30 pm / Imparja Television News / Live ‘simulcast’ of TV news (audio only) – local, national and international news, sport and weather
6:30 pm – 8:00 pm / Music / Music from the 1950’s and 1960’s (unhosted)
8:00 pm – 10:00 pm / Nights with Alice Cooper / Hosted by Alice Cooper and Mistress Kitty, who deliver “the offbeat news on Alice's show, and at times, offbeat celebrity interactions, not to mention great rock songs”; predominantly album tracks
10:00 pm – Midnight / Music / Music from the 1950’s and 1960’s (unhosted)
Table 2: Territory FM 98.7 weekend programs