Investigation Report No. 2710File No. ACMA2011/1832

Licensee Melbourne Community Television Consortium Ltd

Station C31 – Melbourne, Victoria

Type of Service Community Broadcasting – Television

Name of Program All 4 Adventure

Date of Broadcast 10 November 2011

Issue Broadcasting advertisements

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

Date Finalised 9 March 2012

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

ACMA Investigation Report – C31 – Compliance with licence condition

The complaintOn 11 and 18 November 2011, the Australian Communications and Media Authority (the ACMA) received written complaints alleging that the licensee of C31 Melbourne, Melbourne Community Television Consortium Ltd (C31), had failed to comply with a condition of its community television broadcasting licence.

The complainants alleged that a program, All 4 Adventure, broadcast at 7:30pm on 10 November 2011, contained advertising material.

The serviceC31 is the licensee of long-term community television broadcasting licence no. 1150808. C31 is licensed to represent the general community interest of the Melbourne TV1 licence area. C31 commenced its service on 1 August 2004 and its current licence is for the period from 1 August 2009 to 31 July 2014.

The programAll 4 Adventure is a program of approximately 21 minutes and 54 seconds in duration. It follows host Jason and ‘right hand man’ Simon1 as they travel to remote parts of Australia. The episode in question follows Jason and Simon as they travel by 4WD, buggy and all-terrain vehicle (also known as a quad) to Wildfire Gorge in the Lorella Springs Wilderness Park in the Northern Territory.

AssessmentThis assessment is based on written submissions from:

a complainant dated and received by the ACMA on 10 November 2011 (Complainant 1);

a complainant dated and received by the ACMA on 18 November 2011 (Complainant 2); and

C31 dated and received by the ACMA on 5 December 2011, including a DVD copy of All 4 Adventure as broadcast on 10 November 2011, and on 8 March 2012.

Issue: Broadcasting advertisementsRelevant provision of the Broadcasting Services Act 1992 (the Act)

Schedule 2 - Standard conditions 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:

1 www.all4adventure.com/meet-the-team.html - accessed on 23 February 2012.

ACMA Investigation Report – C31 – Compliance with licence condition 2

(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.

[...]

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 […]

Complainants’ submissionsComplainant 1 states that:

[. . ] I was shocked by the blatant advertorial content [. . .]. The continual sponsor logos on their shirts and on screen, the continual reference to products by brand name and numerous personal validations of sponsored products was amazing.

Complainant 2 states that:

Recently while in Melbourne, we saw something that bothered us greatly on a program called All 4 Adventure, it was in the 19:30 slot on the 10th November. We watch Ch31 for the ‘real person’ content rather than blatant advertising and were sorely disappointed and maddened by the amount of sponsor promotion that took place in this episode, logos, biased recommendations and branding, branding, branding, exactly what we expect on commercial television (the reason we prefer not to watch it!) [. . .] Ch31 is all about the people, sure there’ll be new products and companies etc but not like this episode.

Licensee’s submissionsC31 states that:

The program All 4 Adventure is produced in the first instance for the Foxtel Aurora Community Channel. Although this channel represents itself as being a community service, it does not hold a community television licence and is therefore not bound by the advertising restrictions which apply to genuine community television licence holders. Consequently, people making programs for that channel can, and often do, include advertorial material in their programs.

When such a program is presented for a subsequent broadcast on C31, it is assessed to determine whether it is possible through editing to bring the content in line with the community television licence conditions. Some programs have advertorial content so intricately woven into them that transmission by a proper community television service is impossible. In the case of All 4 Adventure, the advertorial sections and in-program sponsorship acknowledgements are in discrete parts of the program which can easily be edited out without destroying the narrative flow of the programs. The producers of All 4 Adventure understand this situation, and have given permission for C31 to delete whatever material is necessary to enable the program to be broadcast by C31.

ACMA Investigation Report – C31 – Compliance with licence condition 3

The standard length for an episode of All 4 Adventure prior to any cutting is 21’54” approx. Reference to C31’s As Run broadcast logs for 27 October and 3 November 2011 shows that the total program durations as broadcast for the first two episodes in this series of All 4 Adventure were 16’49” and 16’24” respectively. This demonstrates that it is regular practice to delete a substantial amount of material from the episodes prior to broadcast.

In the case of episode three, broadcast on 10 November 2011, an uncut version of the episode was broadcast erroneously. Examining the episode, the following deletions should have been made before transmission:

All 4 Adventure - Series 3, Episode 3 - Compliance cuts

Segment 2: Delete 1’48” to 3’20” - Tip of the Week breaker & discussion of “Long Ranger” fuel tanks. Cut = 1’32”

Segment 3: Delete 2’58” to 3’09” - Breaker endorsing “Waeco”. [Waeco Bush Cooking segment] Cut = 0’13”

Segment 4: Delete 0’06” to 2’00” - TJM Set-up segment. Cut = 1’54”

Delete 5’21” to 6’58” – [All 4 Adventure] Competition segment. Cut = 1’37”

Original duration: 21’54”

Total cuts: 5’16”

Duration after cuts: 16’38”

In subsequent weeks, episode four has been shortened to 17’00” and episode five to 17’21”.

The erroneous broadcast of the uncut version of episode three appears to have occurred due to a breakdown in standard procedure resulting from several coinciding staff absences.

All programs broadcast on C31 are transferred from tape or DVD into the station’s server playout system by the Ingest department. The ingesters are tasked with identifying any material contained within a program which does not meet C31’s broadcast conditions, including material which acknowledges sponsors, contains material of an advertising nature, is in excess of the program’s normal classification level, or is of poor technical quality. Special attention is paid to a number of programs which are known to contain problematic material (such as All 4 Adventure); or in which the producers regularly try and push the boundaries of what is understood to be acceptable under a community licence (particularly in relation to advertising or sponsorship acknowledgement).

Programs which [are] identified by Ingest as containing problematic material are referred to the Programming Department. The program will be examined by a member of the Programming Department, who will go through the episode to decide whether any program content is to be deleted, and if so identify the sections which are to be removed and provide Ingest with a list of segment times for the deletions. Ingest will then conform the program as instructed and export the edited program files to the server to await transmission.

In an unusual deviation from normal operating procedures, the original capture files for Series 3, Episode 3 of All 4 Adventure were not flagged as needing to be checked by Programming before transmission. This appears to have occurred due to an assumption that it didn’t need to be specifically flagged as the program is always checked by a member of the Programming Department as a matter of course. Unfortunately, the member of the Programming Department who oversees All 4 Adventure was away on sick leave on the days between the ingesting and transmission of the episode. As the episode had not been correctly flagged for checking, it was then not checked by anyone else. This extraordinary concatenation of complacency and coincidence therefore unfortunately resulted in some material going to air as part of the episode which should not have been broadcast.

ACMA Investigation Report – C31 – Compliance with licence condition 4

Regarding stickers on the vehicles and logos on the presenters’ shirts, C31 states that:

[. . .] There is no dispute that the vehicles, equipment and clothing appearing in the program do feature the logos and emblems of various companies involved in the automotive and off-road vehicle arena. Some of these companies also happen to be sponsors of All 4 Adventure; others are not.

It has previously been decided by the ACMA (as per ACMA’s Investigation Report 1783) that a company’s logo will be considered to be material of an advertising character, notwithstanding the complete lack of any call to action, product promotion or contact information related to the logo. The question then which must be addressed is whether the presence of the logos falls within the exemption criteria in Clause 2(1) to Schedule 2 of [the Act].

[. . .]

It is C31’s assertion that the company logos which appear in the program do so in a manner which is accidental and incidental to the broadcasting of other matter.

The logos are incidental to the main thrust of the program, which is the narrative of the journey through the outback and the sights and difficulties the people encounter along the way. The focus of the camerawork is on the situations the cars and people find themselves in, rather than the logos which happen to appear on their equipment. Logo appearances are often brief, fleeting, with the camera panning away rather than holding on the logos. Shots are framed cutting off parts of the logos rather than ensuring they are clearly and entirely visible. The whole shooting style of the program suggests that the emphasis is on showing the progress (or lack thereof) of the expedition, rather than to display the logos. The people in the program do not draw attention to the logos or otherwise mention the companies or their products during the course of the program (recalling that the program content under consideration in this argument would be an edited version of the episode which would not include the material detailed in section 1 above, which it is conceded should have been deleted from the program before transmission).

It is common in many sporting and recreational activities for logos to appear on the equipment and uniforms or clothing used by the participants. That these logos are also broadcast on television as part of the televising of the activity is generally accepted to be accidental. In the case of All 4 Adventure, it is not possible to film the vehicles involved without also accidentally including the logos on their bodywork; likewise for the clothing worn by the program participants.

C31 submits that the logos which do appear in the program do so in a manner which is neither deliberate nor predominant, and therefore are incidental and accidental to the broadcasting of other matter, thereby satisfying the first limb of the test.

I have been told that the producers of All 4 Adventure do not receive payment from any companies for their logos to appear in the broadcast of the program on C31, and I have not been presented with any reason to disbelieve this. Payment is only received for the broadcasting of the discrete sponsorship announcements on C31, which are not part of the program content. Since the question is whether payment or other valuable consideration has been received for broadcasting the advertising material - the advertising material in this case being specifically the logos appearing in the program - the answer must be that payment has not been received for the broadcasting of that particular material, and therefore the second limb of the test is satisfied.

Given that both limbs of the test are satisfied, it is C31’s position that, in accordance with the exemption criteria in Clause 2(1) of Schedule 2 to [Act], C31 should not be taken to have broadcast an advertisement by broadcasting the sections of the episode of All 4 Adventure which would have been retained subsequent to editing as described earlier.

ACMA Investigation Report – C31 – Compliance with licence condition 5

To remedy the admitted breach, C31 states that:

In order to strengthen the operating procedure regarding the checking of program content to make it more robust in the case of staff absence, we have implemented the following measures:

o Programs known to contain problematic material or which may do so based on prior

experience will be permanently flagged as “Must be checked” in the master Forward Tape List database, noting that the episode must be checked by a member of the Programming Department or the Business Affairs Manager before transmission.

o Any program which must be checked, or which has been found to contain questionable

material, will have “To be checked” included in the ingested files’ filenames, be placed in a discrete folder on the storage server, and have a checking notation added to the program’s entry in the master Forward Tape List database if it has not already be flagged as “Must be checked”.

o No program identified as needing to be checked in the master Forward Tape List database

or by its filenames will be transferred to the playout server until it has been reviewed by a member of the Programming Department or the Business Affairs Manager and marked as suitable for transmission in the master Forward Tape List database by the person carrying out the review.

FindingBreach of clause 9(1)(b) of Schedule 2 to the Act (broadcasting advertisements).

ReasonsThe Act does not define the term ‘advertisement’ and therefore it must be construed from the plain and ordinary meaning of the word. 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 by the broadcasting service;

community information material or community promotional material;

material that promotes the licensee’s service; and

material which is accidental or incidental to the broadcast 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 is not considered an ‘advertisement’ for the purposes of the Act.

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

ACMA Investigation Report – C31 – Compliance with licence condition 6

The program

A review of the broadcast of All 4 Adventure on 10 November 2011 can be described as follows:

The episode follows hosts Jason and Simon as they travel to Wildfire Gorge in the Lorella Springs Wilderness Park in the Northern Territory. The first section of the program shows the vehicles as they travel towards Wildfire Gorge, including Jason twice using a winch to extract Simon’s 4WD which became bogged in a muddy track. The middle section of the program shows Jason and Simon walking through the Gorge and swimming in the waterholes along the way. The final section of the program shows the men returning to camp in their vehicles and planning the next section of the trip.

Interspersed at points in the program are ‘breakers’: Tip of the Week (in which the presenter recommends the installation of Long Ranger long-range fuel tanks), Waeco Bush Cooking (in which the presenter cooks a meal standing in front of, and using ingredients from, a Waeco fridge) and Set-up (in which the presenter recommends fitting out vehicles with TJM products and having vehicles serviced by TJM prior to outback trips). There is also a competition segment in which the presenter lists various prizes which can be won by viewers.

The vehicles feature stickers for the products and services of the companies shown, which appear to sponsor All 4 Adventure. (Many of the same companies are listed in the closing credits of the program.) These include TJM Equipped, BF Goodrich, WAECO, EFS, Almac Trailers & Boat Loaders, Hema Maps, and PWR Performance Products. The shirts worn by Jason and Simon also have the logos of companies printed/stitched on them.

The endorsement of products and services

As acknowledged by C31, the following segments contain material that is designed to draw attention to the products and services of the companies shown:

the Tip of the Week segment broadcast at approximately 5 minutes and 44 seconds into the program;

the Waeco Bush Cooking segment broadcast at approximately 10 minutes and 7 seconds into the program;

the Set-up segment broadcast at approximately 14 minutes and 8 seconds into the program; and

the All 4 Adventure competition segment broadcast at approximately 19 minutes and 36 seconds into the program.

The companies shown in these segments include Long Ranger, Waeco, TJM, EFS, Baja Design, Wilson, Black Widow, BF Goodrich and Max Trax. The material in these segments is clearly designed to draw public attention to the products and services of the companies shown and therefore constitute advertisements.

Having determined that C31 broadcast advertisements, it is necessary to consider whether any of the exceptions under clause 2 of Schedule 2 to the Act apply.

In relation to Tip of the Week, Waeco Bush Cooking and the All 4 Adventure competition segments, none of the exceptions apply, that is, these segments are not:

sponsorship announcements, as there is no acknowledgement of financial support by a sponsor of the licensee or the program broadcast by the service;

community information material or community promotional material;

material that promotes the licensee’s service; or

ACMA Investigation Report – C31 – Compliance with licence condition 7

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

As none of the exceptions apply to the Tip of the Week, Waeco Bush Cooking and the All 4 Adventure competition segments, C31 is taken to have broadcast advertisements, in breach of clause 9(1)(b) of Schedule 2 to the Act.

In relation to the Set-up segment, it commences with an acknowledgement of financial support by TJM of the program: ‘Today’s Set Up is brought to you by TJM: on or off road, work or play, start your adventure with TJM’. Accordingly, C31 is taken to have broadcast a sponsorship announcement on behalf of TJM.

Stickers on vehicles and logos on presenters’ shirts

The 4WD vehicles feature stickers for the products and services of the companies shown. These include TJM Equipped, BF Goodrich, WAECO and EFS, Almac Trailers & Boat Loaders, Hema Maps and PWR Performance Products. In addition, the presenters’ shirts show the logos of several companies, including EFS, BCF Boating Camping Fishing, TJM and Waeco.

The stickers on the vehicles and the logos on the presenters’ shirts are clearly designed to draw public attention to the products and services of the companies shown and therefore constitute advertisements.

Having determined that these stickers and logos are of an advertising nature, it is necessary to consider whether any of the exceptions under clause 2 of Schedule 2 to the Act apply.

C31 submitted that the broadcast of the stickers and the logos should not be taken as broadcasting advertisements, as they are accidental or incidental to the broadcast of other matter and C31 did not receive any payment or other valuable consideration for the broadcast of the advertising material.

The broadcast of the stickers on the vehicles and the logos on the presenters’ shirts is not accidental to the broadcast of other matter. Advertising material will only be an accidental accompaniment to the broadcast of other matter if it was broadcast by the licensee by chance or casually, without being planned. The stickers and the logos are deliberately placed and are designed to attract attention to the products and services of the companies shown.

However, the broadcast of the stickers on the vehicles and the logos on the presenters’ shirts is incidental to the broadcast of other matter. Advertising material may be regarded as an incidental accompaniment to the broadcast of other matter if a program makes reference to a product, service or organisation and that reference is of lesser or secondary importance to the other matter. The Macquarie Dictionary 4th Edition defines ‘incidental’ as ‘happening, or likely to happen, in a fortuitous or subordinate conjunction with something else’.

The stickers on the vehicles and the logos on the presenters’ shirts are of lesser or secondary importance to the broadcast of other matter, this being the journey to Wildfire Gorge in the Lorella Springs Wilderness Park in the Northern Territory. In this regard, it is noted that during the middle section of the program when Jason and Simon are trekking through the Gorge:

there is no mention of any of the companies, their services or products; and

for most of this segment, Jason and Simon are not wearing the shirts displaying the logos.

Action takenIt is noted that C31 has admitted the breach and, in addition to the procedures that it already has in place, it has implemented several measures to ensure that a similar breach does not occur in the future.

ACMA Investigation Report – C31 – Compliance with licence condition 8