4sfm - acma investigation reports 2915 & 2922/media/community broadcas… · web viewi hereby...

Investigation Reports 2915 & 2922

File no. ACMA2012/1534

Licensee Sunshine FM Radio Association Inc.

Station 4SFM Nambour, QLD

Type of service Community radio

Name of program Broadcast from the Halcyon Landing Retirement Village

Date of broadcast 17 November 2012

Issues Broadcasting advertisements Time limit on sponsorship announcements

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

Date finalised 14 February 2013

Decision No breach of clause 9(3)(b) of Schedule 2 to the Broadcasting Services Act 1992 [time limit on sponsorship announcements];

Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements].

ACMA Investigation Report – 4SFM – Compliance with licence conditions

The complaintsOn 26 November 2012, the Australian Communications and Media Authority (the ACMA) received a complaint that the licensee of 4SFM, Sunshine FM Radio Association Inc., exceeded the five-minute per hour time limit for sponsorship announcements between 9.00 am and 1.00 pm during the broadcast from the Halcyon Landing Retirement Village on 17 November 2012 (Complainant 1). The complainant also stated that ‘the ACMA [had] sometime in the previous year investigated the station on another matter to do with advertising’.

On 3 December 2012, the ACMA received a complaint that 4SFM exceeded the five-minute per hour time limit for sponsorship announcements during the broadcast from the Caloundra Power Boat Club on 5 October 2012 and from the Halcyon Landing Retirement Village on 17 November 2012 (Complainant 2). The complainant also complained about the station’s ‘over commercialisation’.

The service4SFM 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.

AssessmentThe assessment is based on submissions from Complainant 1 and Complainant 2, as well as from the licensee.

The licensee provided a copy of the broadcast between 10.00 am to 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012. However, the licensee was unable to provide a copy of the broadcast from the Caloundra Power Boat Club on 5 October 2012. In relation to this broadcast, the licensee stated in its letter to the ACMA dated 18 December 2012 that:

1. With regard to the outdoor broadcast at the Caloundra Power Boat Club on Friday the 5 October I am informed by our Station Manager that we are unable to supply a copy of the broadcast as we only keep copies for six weeks due to the limited space on our computer systems.

2. He further advises me that the broadcast was a station-sponsored travel and lifestyle event to bring together current and potential sponsors. To the best of his [the Station Manager] knowledge, he advises me that it is unlikely that we breached the five minutes per hour sponsorship allowed. The live crosses were approximately three minutes in length and were of an informative and general nature advising listeners where to holiday. There was little, if any, commercial content.

Under clause 5 of Schedule 2 to the Broadcasting Services Act 1992 (the BSA), if a community broadcasting licensee broadcasts matter relating to a political subject or current affairs, the licensee must keep a record of the matter broadcast for six weeks from the date of broadcast or for 60 days from the date of broadcast if a complaint has been made about the matter broadcast.

Based on the information provided by the licensee, the broadcast from the Caloundra Power Boat Club on 5 October 2012 relates to a travel and lifestyle event and does not appear to be matter relating to a political subject or current affairs. As such, the requirement of the licensee to keep a record of the matter broadcast for six weeks from the date of broadcast, that is, until 16 November 2012, is not applicable in this instance.

ACMA Investigation Report – 4SFM – Compliance with licence conditions 2

Further, it is noted that the complaint about the material broadcast on 5 October 2012 was received by the ACMA on 3 December 2012, a little over eight weeks after the date of broadcast. As such, as the licensee submitted to the ACMA, it did not have a copy of the broadcast, as it was kept only for six weeks, that is until 16 November 2012.

Therefore, this assessment relates to the broadcast between 10.00 am to 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012, which includes the ‘serious offending hours’ between 10.00 am to 12.00 pm specified by Complainant 1.

Issue 1: Did the licensee exceed the time limit for sponsorship announcementsRelevant 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.

Complainants’ submissionsComplainant 1 stated that:

[…] on Saturday 17th November 2012 between 9.00 am and 1.00 pm, this station was performing an outdoor broadcast at a retirement facility called Halcyon situated at 2 Bli Bli Rd, Bli Bli, Queensland. During the four hours of airtime the station blatantly broadcasted at least twenty minutes per hour of advertising time. The serious offending hours being between 10.00 am and 12.00 pm. […]

Complainant 2 stated that:

[…] On 2 occasions, October 5th & November 17th, the station broadcast well in excess of the allowable 5 minutes per hour. Both of these occasions were outside broadcasts, one at the Caloundra Power Boat Club, where a Travel Expo was being held. The other was at Bli Bli promoting a new retirement village, namely Halcyon Landing. On both occasions the allowable time for sponsorships was exceeded by 10 - 15 minutes per hour. […]

Licensee’s submissionThe licensee stated in relation to the broadcast from the Halcyon Landing Retirement Village on 17 November 2012 that:

1. This outside broadcast was primarily to introduce Sunshine FM to the visitors and residents at the Halcyon Landing Retirement Village open day and to provide some background music.

2. Unfortunately, this day was beset by problems. Initially, broadcast was due to commence at 9.00 am but was delayed due to technical problems until almost 11.00 am. This dilemma caused our on-site presenter to take his eye off the ball and omitted to advise the novice panel operator to monitor the sponsor broadcasting times, as is our normal


practice. This was also complicated by the absence of our Station Manager, who normally oversees these events, and our regular outside broadcast co-ordinator who were both attending the CBAA conference in Melbourne.

3. We have listened to the recording of the broadcast and we agree that we have probably exceeded the time quota allowed, although most of the broadcast interviews were of a general nature. We sincerely apologise for this and I am assured by the Station Manager that he will be updating our procedures, and putting cross-checks in place to ensure it will not happen again.

FindingDuring the broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012, the licensee did not broadcast sponsorship announcements in excess of five minutes in each hour of broadcast and, accordingly, did not breach clause 9(3)(b) of Schedule 2 to the Broadcasting Services Act 1992;

ReasonsA review of each hour of broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012 shows that:

the broadcast between 10.00 am and 11.00 am contained three minutes and 23 seconds of sponsorship announcements;

the broadcast between 11.00 am and 12.00 pm contained two minutes of sponsorship announcements; and

the broadcast between 12.00 pm and 1.00 pm contained two minutes of sponsorship announcements.

Accordingly, the licensee did not broadcast sponsorship announcements in excess of five minutes in each hour of broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012.

Issue 2: Did the licensee broadcast advertisementsRelevant 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

(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.

Complainants’ submissionsComplainant 1 stated that:

[...] the ACMA [had] sometime in the previous year investigated the station on another matter to do with advertising [...]

Complainant 2 stated that:

I hereby lodge a formal complaint re the blatant over commercialisation by community radio station Sunshine FM 104.9 based in Buderim QLD.

Licensee’s submissionIn response to the preliminary investigation report, received by the ACMA on 14 February 2013, the licensee accepted that it had breached the licence condition at the specified time during the broadcast on 17 November 2012.

FindingDuring the broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012, the licensee broadcast advertisements and, accordingly, breached clause 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

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


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.

Material broadcast from the Halcyon Landing Retirement Village on 17 November 2012

A review of the material broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012 shows that it contained material designed or calculated to draw public attention to, and to bring in custom for, the Halcyon Landing Retirement Village. Consequently, this material constitutes advertisements. Descriptions of the advertisements broadcast are at Attachment A.

Having established that the broadcast contained advertisements, 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 material broadcast was not an accidental or incidental accompaniment to the broadcasting of other matter; and

the licensee received payment or other valuable consideration for broadcasting that material (the Halcyon Landing Retirement Village was identified as a sponsor of 4SFM in the pre-recorded announcements).

Further, the exemptions at clause 2(2) are not applicable in this instance, as the material broadcast:

was not community information or community promotional material;

did not constitute sponsorship announcements, as it did not contain acknowledgement of financial support by the Halcyon Landing Retirement Village of 4SFM or the program; and

did not announce or promote the 4SFM service, including material that is 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 advertisements during the broadcast between 10.00 am and 1.00 pm from the Halcyon Landing Retirement Village on 17 November 2012.

Action Taken

In response to the preliminary investigation report, received by the ACMA on 14 February 2013, the licensee advised that it has taken the following steps to remedy the breach:

1. We will be implementing a training course for all presenters regarding outside broadcasts which will include awareness of the time constraints for sponsorships and related announcements/interviews.

2. We will not be conducting any further outside broadcasts until we are satisfied that we have adequately addressed the issues that contributed to our contravention.

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


ATTACHMENT A – Times and descriptions of advertisements broadcast

Time Description

10.30 am 4SFM crosses to its presenter at the Halcyon Landing Retirement Village (Halcyon Landing), who explains that Halcyon Landing is having an open day and that listeners are invited to attend. The presenter states that there is free food and beverages for attendees. He describes the facilities available at Halcyon Landing, including a swimming pool, cinema, bowling green, library and gym. The descriptions of the facilities and people involved with Halcyon Landing include: ‘beautiful Halcyon Landing’, ‘I’ve been so impressed’, ‘the standard of these houses is just fantastic’, ‘great people’ and ‘what else could you ask?’.

10.49 am The 4SFM presenter at Halcyon Landing interviews a resident. He asks the resident why he had bought a unit at Halcyon Landing. The resident refers to the number of facilities and quality of services available to residents. The resident also mentions the affordability of the housing units, the lack of exit fees for selling a unit, the good location and proximity to shops and other services. The resident invites listeners to come to the open day to meet the staff and residents of Halcyon Landing.

11.06 am The 4SFM presenter provides directions to Halcyon Landing and mentions the purpose of the open day. He interviews another resident, asking why she bought a unit at the retirement village. The resident talks about a number of attributes of the village in a positive manner, including the lack of exit fees for selling a unit, the high energy rating of the units and water storage. Other advantages referred to by the resident include the camaraderie of residents and the size and comfort of the homes. The resident invites listeners to come to the open day to meet staff and other residents.

11.21 amThe 4SFM presenter, referring to Halcyon Landing, states it is ‘fantastic out here’, and that ‘it is almost like an extended family’. The presenter refers to the retirement village company as multi-award Halcyon group and then mentions the number of housing units available at the village. The presenter also mentions that it has a ‘superb recreation precinct’, including a bowling green, pool, tennis court, cinema, gym and library. The presenter invites listeners to come to the open day and provides the address and directions. The presenter then speaks to the 4SFM studio host, both talk about Halcyon Landing in positive terms, mentioning additional facilities and stating that ‘out of 10, they’d give it a 12’.

11.37 am The 4SFM presenter provides directions to Halcyon Landing and mentions the purpose of the open day. He interviews the Project Director of the Halcyon Landing development. They talk about the positive response to the open day and high reputation of Halcyon Landing retirement villages. They discuss the reasons for developing the retirement village at Bli Bli,


mentioning the location and existing infrastructure in the area. They also talk about the facilities the retirement village will have once completed, including a library, recreational centre, cinema, pool, bowling green, tennis court, cinema and games area. They talk about the high energy ratings and other quality features of the homes and sales figures. They conclude by inviting listeners to come to the open day.

12:05 pm 4SFM crosses to the presenter at Halcyon Landing, who invites listeners to attend the open day. He states there is free food and beverages for attendees. The presenter mentions the facilities available at Halcyon Landing, including a swimming pool, tennis court, cinema, bowling green, library and gym. The presenter provides the address and directions to Halcyon Landing and again invites listeners to come and join him.

12:22 pm The 4SFM presenter provides directions to Halcyon Landing and mentions the purpose of the open day. He interviews a resident, asking why he bought a unit at the retirement village. The resident talks about several attributes of the village in a positive manner, including the camaraderie of residents, that it is a ’life-style choice’ and the quality of the homes. The resident mentions facilities available, including the pool, bowling green, tennis court, cinema and entertainment area. The presenter again invites people to attend the open day and directs listeners to the Halcyon Landing website.

12:46 pm The 4SFM presenter interviews another resident, asking why he bought a unit at the retirement village. The resident speaks about a number attributes of the village in a positive manner, including the location, lack of entry and exit fees and value for money. The presenter and resident also mention facilities including the pool, bowling green, tennis court, cinema, gym and entertainment area. The resident concludes by saying ‘it’s the best move we ever made’. The presenter ends by directing listeners to the Halcyon Landing sales office.

12:53 pm The 4SFM presenter wraps up the 4SFM outside broadcast. He states ‘If you’re thinking about moving into a life-style resort, an over 50’s life-style resort, you cannot go past this one here at Halcyon Landing, Bli Bli. It’s just got everything you could ever imagine and the people are terrific and the whole thing is just a wonderful place to go’. He concludes the outside broadcast by directing listeners to the sales office.


4sfm - acma investigation reports 2915 & 2922/media/community broadcas… · web viewi hereby...

Documents