Investigation Report No. 2984

File no. ACMA2013/281

Licensee Tribe FM Inc.

Station 91.1 Tribe FM (Willunga RA1)

Type of service Temporary community radio broadcasting service

Names of programs various unspecified

Dates of broadcast 19 January 201328 January 201314 February 2013

Issues Complaints handling Broadcasting advertisements

Relevant code and legislation

Code 7.3(b) of the Community Radio Broadcasting Codes of Practice 2008

Clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992

Date finalised 07 May 2013

Decision Breach of Code 7.3(b) of the Community Radio Broadcasting Codes of Practice 2008 [complaints handling];

No breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [broadcasting advertisements].

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 1

The complaintsOn 25 February 2013, the Australian Communications and Media Authority (the ACMA) received a complaint that the licensee of 91.1 Tribe FM, Tribe FM Incorporated (Tribe FM), had failed to provide an adequate response to a complaint concerning program material broadcast on 13 December 2012. The complainant stated that, following an interim response from Tribe FM on 20 December 2012, no further correspondence was received.

On 25 February 2013, the ACMA received a second complaint. This complaint stated that Tribe FM had broadcast advertisements on 19 January 2013, 28 January 2013 and 14 February 2013.

The serviceTribe FM holds a temporary community broadcasting licence (TCBL) to represent the general community interest in the Willunga RA1 licence area (South Australia). Tribe FM’s first TCBL commenced on 2 April 2011 and further TCBLs have subsequently been issued. The current TCBL expires on 2 April 2014.

AssessmentThe ACMA’s assessment is based on submissions from the complainants and from the licensee.

The first complaint to the ACMA concerned the adequacy of the handling of a complaint about program material by Tribe FM and not the nature of the material itself. The ACMA did not investigate and has made no assessment of the program material.

On 25 March 2013, the ACMA received Tribe FM’s comments in relation to the two complaints.

Tribe FM advised the ACMA that as its recording system retained recordings of broadcasts for 42 days, the record of the broadcast of 19 January 2013 was no longer available.

The ACMA received records of the following broadcasts:

28 January 2013 12:00 pm – 2:00 pm

14 February 2013 12:00 pm – 2:00 pm

Issue 1: Did the licensee adequately respond to the complaint relating to material broadcast on 13 December 2012

Relevant provisions of the Community Radio Broadcasting Codes of Practice

Code 7: Complaints

7.3 (b) complaints will be conscientiously considered, investigated if necessary, and responded to substantively as soon as possible,

[....]

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 2

Complainants’ submissionsThe complainant provided the ACMA with a copy of the original complaint regarding program material broadcast on 13 December 2012, said to have been sent (recipient details have been obscured on the copy) to Tribe FM on 14 December 2012 (email date stamp included). The complainant also provided a copy of correspondence said to be a response from Tribe FM (sender details obscured) to the complainant. This document included an email date stamp of 20 December 2012.

The correspondence of 20 December 2012 stated:

The Board have deferred to the PC to handle the matter regarding the poem read by [name of poet], which, I believe, was his own poem. The PC will deal with the matter at it’s next meeting which is not until January 15th, but it is on the Agenda.

We do have to allow all (modern) social attitudes and ideas to be expressed on Community Radio, but at relevant times, and I feel that the time of the airing of this poem was not appropriate.

I will let you know what the PC’s action on this matter – and anything similar – is, after our next meeting, but rest assured, something with be done. We aim to encourage people to listen, not turn them away.

In the complaint lodged with the ACMA on 25 February 2013 the complainant stated that no further correspondence in relation to the matter had been received from Tribe FM since the correspondence received on 20 December 2012.

Licensee’s submissionFrom information included in Tribe FM’s submission to the ACMA received on 25 March 2013, it is apparent that the correspondence provided to the ACMA by the complainant is an accurate representation of the correspondence entered into by Tribe FM.

Tribe FM’s submission stated that the complainant received a timely response to the complaint of 14 December 2012 concerning the broadcast of the poem and that that response was provided by the Chairperson of the Programming Committee on 20 December 2012. The submission also stated that this response advised the complainant that the complaint would be dealt with by the Programming Committee on 15 January 2013.

In its submission, Tribe FM agreed that the complainant did not receive a fully adequate response because the Programming Committee did not meet on 15 January 2013 and did not meet until 26 February 2013. Tribe FM explained that this delay was caused by sudden and unexpected changes in the personal circumstances of a member of the committee.

The submission also stated that the Tribe FM Board had passed a motion at its meeting on 21 February that dealt with the way in which Tribe FM responded to breaches of “the Broadcasting Act, Tribe FM’s Code of Conduct or Training Practice Manual” by presenters. Tribe FM stated that this created confusion that resulted in the complaint of 14 December 2012 being misplaced and not being discussed until the next meeting of the Board on 21 March 2013.

The Tribe FM submission included a copy of the licensee’s substantive response to the complaint of 14 December 2012, dated 22 March 2013.

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 3

In response to the ACMA’s preliminary investigation report, received by the ACMA on 26 April 2013, Tribe FM accepted that it had failed to respond substantively within 60 days of having received the complaint and acknowledged that their “administration systems have not been up to the task or in keeping with the Code of Practice.”

Tribe FM also stated that the ACMA should consider the exception to resolving complaints (i.e. where they are “without sufficient grounds”) under code 7.2 of the Community Radio Broadcasting Codes of Practice 2008 because the Tribe FM Board had concluded at its meeting on 21 March 2013 that the original complaint was “inaccurate and without substance”.

This conclusion by Tribe FM is a conclusion regarding the merits of the original complaint, reached after the complaint was considered and investigated. However, this process was not completed until 21 March 2013 and therefore was not “as soon as possible” as required under code 7.3(b).

FindingThe licensee breached Code 7.3(b) of the Community Radio Broadcasting Codes of Practice because it had not conscientiously considered, investigated or responded substantively as soon as possible to the complaint it had received on 14 December 2012.

ReasonsCode 7.3(b) of the Community Radio Broadcasting Codes of Practice (the Codes) requires licensees to conscientiously consider a complaint and provide a substantive response as soon as possible after receipt of the complaint.

Tribe FM did respond in a timely manner after receiving the initial complaint. However, its response was of an interim nature that advised the complainant that the matter would be considered further under internal processes and that the complainant would be advised as to the results of these considerations. This did not constitute a substantive response to the complaint, a result of it having been investigated and conscientiously considered.

Although some of the factors that delayed the meeting of the Programming Committee and the proper consideration of the complaint by the Board of Tribe FM are understandable, this does not obviate the fact that Tribe FM did not conscientiously consider the complaint and respond substantively as soon as possible as required under the Codes. Once the delays to consideration of the complaint became apparent, other approaches to dealing with the complaint could have been taken to ensure that the complaint was dealt with substantively in a more timely fashion.

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[…]

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 4

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’ submissionsThe complainant stated that Tribe FM broadcast unidentified (untagged) sponsorship advertisements at the following dates and times:

1. 19 January 2013 3:03 pm

2. 28 January 2013 12:50 pm

3. 14 February 2013 12:54 pm

No detail of the content of the alleged advertisements was provided.

Finding(1) Recordings of the broadcast on 19 January 2013 could not be obtained from the licensee for the reasons set out above. The ACMA could not investigate the complaint that untagged sponsorships were broadcast on 19 January 2013 and therefore makes no finding.

(2) The licensee did not breach clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 (BSA) during the broadcasts of 28 January 2013 and 14 February 2013.

ReasonsIt is a condition of all community broadcasting licences that the licensee must not broadcast advertisements. The condition is contained in clause 9(1)(b) of Schedule 2 to the BSA. The BSA does not provide a definition for an ‘advertisement’.

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 5

What is an advertisement?

In investigating complaints, the ACMA has 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 4th Edition defines ‘advertisement’ as follows:

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.

It follows that any material that promotes goods, services or activities will usually fall within the ordinary meaning of the term advertisement. This does not mean that community broadcasters cannot broadcast any promotional material. The Act provides that certain promotional material is not taken to be an advertisement.2 This includes:

sponsorship announcements which acknowledge financial support by a sponsor of the licensee or a program broadcast on the community broadcasting service provided under licence;

community information material or community promotional material;

material that promotes the licensee’s service; and

material which is accidental or incidental to the broadcasting of other matter, and for which the licensee does not receive payment or other valuable consideration.

This means that a promotional announcement that falls within one of these categories, although it may have an advertising character, is not considered to be an ‘advertisement’. A community broadcaster may broadcast such an announcement without breaching the prohibition on advertising.

Material broadcast on 28 January 2013

No time calls were made on-air during the recording of this broadcast provided by the licensee. Times of broadcast were calculated solely from the times specified by the licensee.

A review of the material broadcast between 12:00 pm and 1:00 pm on 28 January 2013 showed no material designed or calculated to draw public attention to, and to bring in custom for, any organisation, product or service at or near 12:50 pm. In fact, the recording for the 12:00 pm to 1:00 pm broadcast hour contained no material other than recorded music.

The licensee also provided a recording for the period 1:00 pm to 2:00 pm and this was also reviewed. In the recording of these broadcasts only one item other than music was broadcast. This item was a 30 second call for members, volunteers and sponsors of Tribe FM, broadcast at approximately 1:40 pm.

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

2 Clauses 2(1) and 2(2) of Schedule 2 to the Act.

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 6

Material broadcast on 14 February 2013

No time calls were made on-air during the recording provided by the licensee of this broadcast. Times of broadcast were calculated solely from the times specified by the licensee.

A review of the material broadcast between 12:00 pm and 1:00 pm on 14 February 2013 showed that verbal references to the following businesses, products and services were made by the two presenters at the following times:

i. 12:24 The Woolshed therapy centre

ii. 12:42 Mother energy drink

iii. 12:43 Dogridge Wines

iv. 12:45 Ordinga Shopping Centre

v. 12:46 Wirra Wirra Wines

vi. 12:57 Sunrise (a television program)

vii. 12:58 The Green Room (a local cafe)

No references to products or services were identified at the time specified in the complaint (12:54 pm). As no other detail identifying the product or service alleged to be advertised was provided in the complaint the precise content complained of could not be further identified. The following analysis refers to all content that was identified in the 12:00 pm-1:00 pm broadcast hour that the complaint may have been referring to.

Each of the verbal references listed above contained material that was of an advertising character, being material that drew attention to the products or services referred to by name by the presenters.

Details of the recording of the relevant periods of the broadcast are provided at Attachment A.

Having established that the broadcast contained 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.

The exemption at paragraph 2(1)(a) is applicable to the examples (i), (ii), (vi) and (vii) as:

the material broadcast was accidental or incidental accompaniment to the broadcasting of other matter.

In each of these examples the verbal references arose accidently and within the context of a conversation or discussion that primarily concerned other matters. The references were brief and incidental in nature.

Further, the exemptions at clause 2(2) are applicable to examples (iii), (iv) and (v), as the material broadcast:

constituted sponsorship announcements that acknowledge financial support by a person of the licensee or of a program broadcast on a service provided under the licence.

In each of these examples the support by the organisation or product of Tribe FM or a Tribe FM program was explicitly acknowledged.

Accordingly, the licensee is taken not to have broadcast advertisements during the broadcast between 12:00 pm and 1:00 pm on 14 February 2013.

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 7

Action taken

In response to its failure to deal with the complaint concerning program content as required under code 7.2 of the Codes Tribe FM indicated that they intend to adopt a complaints policy and procedure at their next Board meeting that will make it easier to record and track complaints. A copy of the draft policy was provided.

This measure is an adequate response to the breach of code 7.2 of the Codes and no further action will be taken at this time.

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 8

ATTACHMENT ATimes and descriptions of advertisements broadcast

Details of recording of broadcast – Tribe FM – 14 February 2013

12.24 (i) The Woolshed therapy centre [12:24:10 – 12:24:40]

“ ......now she’s working in the drug and alcohol area.”

“oh, OK.”

“yeah,

“OK, doing counselling and stuff”

“yeah well she works at The Woolshed which is a fantastic place, therapy centre“

“kudos, kudos”

it’s an awesome, awesome place, in fact she ...”

“it ties in with your bit of a talk about depression and addiction. It’d all tie in together with all that sort of thing.”

“oh yeah, all related to my totally dysfunctional family (laughs)”

“oh no, no, helping, helping”

[....]

12.42 (ii) “Mother” energy drink [12:42:05 – 12:43:40]

“..... well, we’ll wait and see if post-election that all of sudden you’ll see certain brands all over Australia, all the little kiddies instead of having their little milk in the beginning of the day, they may be having one of those ...”

“oh, that is a scary thought, I have a close friend, actually, who – packing those energy drinks? (laughs)”

“I like the one called Mother – oh no, no, I’m not allowed to say that”

“no you’re not”

“no I love my Mother”

“it’s my job to stuff up [name of presenter], what are you doing?”

“I’m just talkin’ about my mother”

“I’m the new one”

“yeah right – sorry – it is a funny thing though”

“it is a really funny name, but apparently they’re saying it’s causing masses of problems, you probably heard it on the news, people are no longer just drunk and they fall down and sleep in the corner, and they’re drunk and they’re so hyped up by masses of caffeine that they just go crazy and it leads to a lot of physical stuff too, heart attacks apparently related to energy drinks”

“warning warning”

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 9

“we’ve gotta tell the public about this stuff [name of presenter]”

“put it down”

“stop it!”

“if got one of those things ...”

“stop it!”

“.... which we won’t say what they are, if got one of them things that we won’t say what they are, put it down”

“yeah, and everything in moderation, yes, one or two’s ok”

“I’m sure people out there are so glad they tuned today ....”

12.43 (iii) Dogridge Wines [12:43:17 – 12:44:13]

“now, we’ve actually got now, we have to do the weather.”

“cool – no – hot”

“and there’s no music,

“hot, hot hot”

“because today’s weather is brought to you by Dogridge Wines, vineyard and cellar doors.”

“nice”

“and today – now, can you read it from over there? It’s a big studio we’ve got here. Now today, sunny, sunny, sunny, sunny, .......”

12.45 (iv) Ordinga Shopping Centre [12:45:33 – 12:46:03]

Pre-recorded advertisement immediately followed by the acknowledgement “Tribe sponsor”

12.46 (v) Wirra Wirra Wines [12:46:03 – 12:46:33]

Pre-recorded advertisement immediately followed by the acknowledgement “sponsor”

12.57 (vi) Sunrise (Seven Network television program) [57:00 – 57:30]

“he’s the president of the Port Adelaide Football Club”

“that’s right – he’s also the presenter on Sunrise – he started saying, oh you know, my daughter she would be discreet, she would go to a discreet place to breastfeed”

“right – back of the shelter shed”

“he got so many texts to say, you know, go jump Kochie, like wrong! Like women should be allowed to breastfeed .....”

12.58 (vi) The Green Room [12:58:14 – 12:58:26]

“yes .... I can see you, I can see you at the Green Room, somewhere in last February”

“oh my god – he’s got it! Hey - yeah well anyway, I walked into this cafe .....”

ACMA Investigation Report – Tribe FM – Compliance with codes and licence condition 10