IN - CONFIDENCE

Investigation Report No. 3080

File No. ACMA2013/1163

Licensee Ryde Regional Radio Cooperative Ltd

Station 2RRR

Type of service Community radio broadcasting

Name of program Outdoor broadcast

Date of broadcast 22 June 2013, 9:00am – 10:00am

Issues Broadcasting advertisements Time limit on sponsorship announcements

Relevant legislation Paragraph 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992Paragraph 9(3)(b) of Schedule 2 to the Broadcasting Services Act 1992

Date finalised 8 January 2014Decision Breach of paragraph 9(1)(b) of Schedule 2 to the Broadcasting

Services Act 1992 [broadcasting advertisements]No breach of paragraph 9(3)(b) of Schedule 2 to the Broadcasting Services Act 1992 [sponsorship time limit]

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013

The complaintOn 12 July 2013, the Australian Communications and Media Authority (the ACMA) received a complaint that on Saturday 22 June 2013 between 9:00am and 10:00am, the licensee of community radio broadcasting station 2RRR, Ryde Regional Radio Cooperative (2RRR), broadcast advertisements and exceeded the permissible five minutes of sponsorship announcements per hour when conducting an outdoor broadcast from the Organic Food Markets at Riverside Girls High, Gladesville.

The service2RRR commenced providing a licensed community radio broadcasting service in the Ryde RA1 licence area in March 1984. Its current licence is due to expire on 10 February 2017.

The Ryde RA1 licence area comprises the local government areas of Ryde and Hunters Hill. 2RRR represents the general community interest in the licence area.

The programThe program broadcast on Saturday 22 June 2013 between 9:00am and 10:00am was an outdoor broadcast from the organic food and farmers market at Riverside Girls High School, Gladesville.

The program contained a number of live interviews with stallholders and the organiser of the markets, interspersed with music tracks, with a food-related theme.

AssessmentThe assessment is based on written submissions from the complainant (dated 12 July 2013) and from 2RRR (dated 8 August 2013), as well as a copy of the broadcast provided to the ACMA by 2RRR.

Issue 1: Did the licensee broadcast advertisements? Relevant provisions of the Broadcasting Services Act 1992

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

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 2

(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 submissionsThe complainant stated that on Saturday 22 June 2013 between 9:00am and 10:00am, 2RRR suspended its regular programming and broadcast an ‘infomercial’ on behalf of its sponsor, Organic Food Markets and their clients live from the sponsor’s markets at Riverside Girls High School, Hunters Hill.

The complainant stated that Organic Food Markets was clearly identified as a sponsor of 2RRR at least three times during the broadcast and the website, Facebook page and phone number of the sponsor were clearly identified on several occasions. The presenter was also said to have drawn attention to other market locations managed by the sponsor and the manager of Organic Food Markets was interviewed for approximately 15 minutes.

The complainant also stated that the presenter broadcast advertisements for many of the stallholders, interviewing them, promoting their stalls, their businesses and their products.

Licensee’s submissionsIn its submission to the ACMA, 2RRR stated that:

The announcements and interviews took up about 25 minutes of the program, the remainder of the program being music tracks,

The complaint was that the advertisements were for Organic Food Markets and for stallholders, including seven business names. As you will hear, the presenter did not use any of the business names, but only addressed the stallholders by their Christian names [...] In a genuine advertisement, the business names would of course have been mentioned.

The interviews were light-hearted and chatty, and the presenter’s praise was tongue-in-cheek rather than promotional: “the best bacon and egg roll this side of the Gladesville Bridge”. The main focus was on the merits of organic produce.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 3

The interview with the organiser of the market was mainly an explanation of what constitutes organic produce, and the fact that the goods were fresh because the stallholders were small operators and did not have storage facilities.

Neither the presenter nor 2RRR received any payment from the organiser or the stallholders. However, the organiser gives 2RRR a free stall at the market and we take advantage of this occasionally.

The intention of the program was to draw the attention of listeners to a local event which had a fun element to it [...] However, we can understand that it might be construed as containing an advertising element, so we are sending a memo to all our presenters explaining the BSA guidelines regarding advertising and sponsorships, and warning that any infringement would lead to disciplinary action.

FindingThe licensee broadcast advertisements on 22 June 2013 between 9 am and 10 am in breach of paragraph 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.

ReasonsWhat is an advertisement?

The 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.

Who is ‘an ordinary, reasonable listener’?

In determining whether the requirements of the BSA have been met, the ACMA has previously considered what ‘an ordinary, reasonable listener’ would have understood the broadcast concerned to have conveyed. 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. An ordinary, reasonable listener does not live in an ivory tower,

1 Australian Capital Television Pty Ltd and the State of New South Wales v The Commonwealth (1992) 177 CLR 106 at 166.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 4

but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2

Material broadcast on 22 June 2013

A review of the recording of the outdoor broadcast from the outdoor broadcast from Organic Food and Farmers Market, Hunters Hill between 9:00am and 10:00am on 22 June 2013 shows that it contained material designed or calculated to draw public attention to, and to bring in custom to:

Organic Food Markets;

Mark’s Gourmet Rolls;

Brasserie Bread;

Nick and Yoko’s smoothies and skin care products;

Gozleme stall;

Organic Egg stall;

Organic Olive stall;

Organic Cheese stall.

Consequently, this material is of an advertising character.

Having established that the licensee broadcast material of an advertising character, 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.

Clause 2(1) of Schedule 2 to the BSAWas the material of an advertising character an accidental accompaniment to other matter?

There is no definition of the term ‘accidental’ in the BSA. In the past, the ACMA has used the ordinary meaning of the word.

The Macquarie Dictionary (Fourth Edition) defines ‘accidental’ as:

accidental: adjective happening by chance or accident, or unexpectedly.

Material of an advertising character may be allowable as an ‘accidental accompaniment’ to the broadcast of other matter only if it was broadcast by the licensee:

by mere chance, or

casually, without being planned.

Broadcasts of material of an advertising character that are deliberate, or due to some arrangement or understanding, would not be considered an ‘accidental accompaniment’ to the broadcast of other matter.

To an ordinary, reasonable listener, the multiple mentions of the Organic Food Markets, Mark’s Gourmet Rolls, Brasserie Bread and Nick and Yoko’s smoothies and skin care products were deliberate and intended – as part of a coherent and public conversation – to bring the listener’s attention to those things. Similarly, the references to the gozleme, organic

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp.164–167.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 5

eggs, olives and cheeses, although made more casually and with less emphasis on branding, were also purposefully made with an intention of bringing attention to those stalls and their wares, as part of the same public conversation.

Accordingly, the material of an advertising character was not an accidental accompaniment to the broadcast of other matter (the interviews).

Was the material of an advertising character an incidental accompaniment to other matter?

There is no definition of the term ‘incidental’ in the BSA. In the past, the ACMA has used the ordinary meaning of the word.

The Macquarie Dictionary (Fourth Edition) defines ‘incidental’ as:

incidental: adjective happening or likely to happen in fortuitous or subordinate conjunction with something else.

Material of an advertising character 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 a 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.

In the Rothmans case, the Court stated:

It is not difficult to think of circumstances under which a licensee might televise matter of an advertising character as an incidental accompaniment of televising other matter; for example a televised news item shows a street scene with advertising billboards in the background. The transmission may be accidental, in the sense that the staff of the licensee do not notice the background billboard. But it may also be deliberate. The action—which represents a genuine news item—happens to take place in front of the billboard so that if the news item is to be used the billboard must also be shown. Under such circumstances the exclusion of ‘incidental accompaniment’ would apply.3

While the Rothmans case deals with a matter involving a television licensee, the ACMA considers the definition of ‘incidental accompaniment’ as useful.

The references to the Organic Food Markets, the stallholders and their wares were not secondary to a broader discussion, for example, about organic produce or markets generally. The references were specific and purposeful, aimed to draw attention to the market organiser, the stallholders and their wares. Accordingly, the material of an advertising character was not an incidental accompaniment to the broadcast of other matter.

Under clause 2(1), a person is taken not to have 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 [emphasis added]

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

Having established that material of an advertising character was broadcast not as an accidental or incidental accompaniment to the broadcast of other matter, it is not necessary to

3 Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 58 ALR 675, at 691.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 6

consider whether the licensee received any payment or other valuable consideration for broadcasting the material of an advertising character. In any case, the licensee has advised that it received valuable consideration for the broadcasting of the material, being in the form of a free stall at the markets concerned.

Accordingly, the exemption at clause 2(1) does not apply in this instance. It is therefore necessary to consider whether any of the exemptions at clause 2(2) of Schedule 2 apply to the broadcasting of the material of an advertising character.

Clause 2(2) of Schedule 2 to the BSAIs the material community information material or community promotional material?

Paragraph 2(2)(a) of Schedule 2 to the BSA provides for the broadcasting of community information material or community promotional material not to be taken to be the broadcasting of an advertisement.

The ACMA’s Community Broadcasting Sponsorship Guidelines 2008 provide examples of community information material, including ‘genuine community information material, such as local sporting events, community theatre or weather warnings’.4

To an ordinary, reasonable listener, the outside broadcast from Riverside Girls High would not be taken to be community information material or community promotional material. It is noted that the broadcast contained elements that would be considered to be community information, providing information to listeners who may be interested in visiting the markets. This includes information about the location of the markets, the days and time of operation and information about the goods and produce available.

There are many segments, including statements by the announcer and information in the interviews that go beyond a general discussion and are overtly promotional in nature, either of the markets or the individual stallholders and their wares. For example, the website address for Organic Food Markets is announced seven times in the hour, the phone number is given four times and the Facebook page twice in the broadcast. These announcements invite listeners and potential stallholders to go the site to find out more about Organic Food Markets, when and where they are on and how to become a stallholder. Similarly, Mark’s gourmet bacon and egg rolls are promoted as the ‘best this side of the Gladesville Bridge’ on four occasions.

About 35 minutes into the broadcast, there is an interview with the organiser of the markets that is about 10 minutes in length. Much of the interview is of a general nature, including the genesis of the markets, what constitutes organic food, general information about the produce available at the markets, and would be considered genuine community information. Segments of the interview, however, are overtly promotional and would be considered to be advertising by the ordinary, reasonable listener. In particular, in the opening minutes of the interview, the guest is promoting the produce available at the markets, including Brasserie Bread, the organic egg stall and the organic olive stall in a positive and glowing terms that go beyond mere community information.

As a consequence, the broadcast is not of community information or community promotional material and the exemption at paragraph 2(2)(a) of Schedule 2 to the BSA does not apply.

4 ACMA Community Broadcasting Sponsorship Guidelines 2008, p.9 at http://www.acma.gov.au/~/media/Community%20Broadcasting/Advice/pdf/Community%20Broadcasting%20Sponsorship%20Guidelines%202008.PDF

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 7

It is sufficient for the exemption at clause 2(2) to apply if the broadcast meets any one of the three exemptions listed. As such, it is necessary to consider the exemptions at paragraphs 2(2)(b) and (c).

Is the material a sponsorship announcement?

Paragraph 2(2)(b) of Schedule 2 to the BSA provides for the broadcasting of a sponsorship announcement that acknowledges financial support not to be taken to be the broadcasting of an advertisement.

Organic Food Markets is acknowledged as a sponsor of 2RRR on three separate occasions in the broadcast. For example, in the announcer’s opening remarks, he states that ‘we’re broadcasting live from the Organic Food Markets at Gladesville. Organic Food Markets dot com dot au. They’re a proud sponsor of the radio’. On two other occasions, Organic Food Markets is acknowledged as a sponsor of 2RRR.

In its submission to the ACMA of 8 August 2013, 2RRR acknowledged that ‘the organiser gives 2RRR a free stall at the market and we take advantage of this occasionally’. This in-kind payment to 2RRR is sufficient to establish a financial relationship between the market organiser and 2RRR and is a legitimate form of sponsorship for a community radio station.

The three segments of the broadcast acknowledging financial support by the organiser of 2RRR are consequently not taken to be the broadcasting of advertisements. However, the other segments of an advertising character outlined above that promote the markets, stallholders and the wares and that have no acknowledgment of financial support by the person of 2RRR are not sponsorship announcements and therefore not exempt under paragraph 2(2)(b) of Schedule 2 to the BSA.

Is the material announcing or promoting a service provided under the licence?

Paragraph 2(2)(c) of Schedule 2 to the BSA,, provides for the broadcasting of material that announces or promotes a service provided under the licence not to be taken to be the broadcasting of an advertisement.

There are a number of segments within the broadcast that announce or promote the service provided to the community by 2RRR, including the provision of 2RRR’s website and Facebook addresses and announcements encouraging the community to participate in the service. These segments are covered by the exemption at paragraph 2(2)(c) of Schedule 2 to the BSA.

However, the other segments of an advertising character outlined above that promote the markets, stallholders and the wares are not announcing services provided by 2RRR under the licence and therefore not exempt under paragraph 2(2)(b) of Schedule 2 to the BSA.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 8

Issue 2: Did the licensee exceed the time limit on sponsorship announcements? Relevant provisions of the Broadcasting Services Act 1992

Schedule 2 – Standard conditions

Part 5 – Community broadcasting licences

9 Conditions applicable to services provided under community broadcasting licences

(3) A community broadcasting licensee may broadcast sponsorship announcements on a particular community broadcasting service. However, they must not run in total for more than:

[...]

(b) in any other case – 5 minutes in any hour of broadcasting on that service.

Complainant’s submissionThe complainant alleged that 2RRR broadcast more than five minutes of sponsorship announcements between 9:00am and 10:00am on 22 June 2013.

Licensee’s submissionThe licensee submitted that:

The ‘majority of the “talk” part of the program was devoted to the stallholders, none of whom are sponsors of 2RRR.’

There were several mentions of the contact details of Organic Food Markets and an interview with the organiser but the references do not exceed five minutes.

Organic Food Markets does not pay 2RRR for sponsorship but does let 2RRR have a stall at their Gladesville market which 2RRR takes advantage of occasionally.

FindingThe licensee did not breach paragraph 9(3)(b) of Schedule 2 to the Broadcasting Services Act 1992 (BSA) during the broadcast of 22 June 2013.

ReasonsIt is a condition on all community radio broadcasting licences that the licensee must not broadcast sponsorship announcements that run in total for more than five minutes in any hour of broadcasting. For the purposes of calculation, any hour of broadcasting is taken from the start of each hour.5

A sponsorship announcement acknowledges financial support by a person of the licensee or of a program broadcast by the licensee. Financial support can be in cash or in kind. In this particular case, the financial support given to 2RRR is in-kind, i.e. a free stall at the Gladesville market.

5 ACMA Community Broadcasting Sponsorship Guidelines 2008, p.15 at http://www.acma.gov.au/~/media/Community%20Broadcasting/Advice/pdf/Community%20Broadcasting%20Sponsorship%20Guidelines%202008.PDF

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In the program, the announcer acknowledges the financial support of Organic Food Markets on three separate occasions, identifying them as a sponsor of 2RRR. The three sponsorship announcements run for approximately 25 seconds in total. The ACMA has not identified any other sponsorship announcements in the broadcast by 2RRR between 9:00am and 10:00am on 22 June 2013. Accordingly, the licensee did not exceed the five minutes per hour permitted for sponsorship announcements on community radio services.

Action takenIn response to the ACMA’s investigation, the licensee advised the ACMA that:

As a Broadcasting Radio Station we take very seriously our responsibilities and duties in upholding all the legislative requirements that relate to our Broadcasting License.

2RRR accepts your finding that it is guilty of breaching the rules against advertising.

We consider this to be an isolated instance, caused by an inexperienced presenter who was unaware of the implications of their appearing to be endorsing local businesses.

All of our presenters have been warned about the rule against advertising and that a serious view would be taken of any future transgressions.

The measures are an adequate response to the breach of clause 9(1)(b) of the Schedule 2 to the Act and no further action will be taken at this time.

ACMA Investigation Report – outdoor broadcast by 2RRR on 22 June 2013 10