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Investigation Report No. 3089

File no. ACMA2013/1359

Licensee Radio Albury Wodonga Pty Limited

Station 2AAY Albury

Type of service Commercial radio broadcasting

Name of program The Kyle and Jackie O Hour of Power

Date of broadcast 25 May 2013

Relevant code or licence condition

Clauses 1.3 and 1.5 of the Commercial Radio Australia Codes of Practice and Guidelines March 2013

Date finalised 2 December 2013Decision The Australian Communications and Media Authority concludes that

Radio Albury Wodonga Pty Ltd:

did not breach clause 1.3 [generally accepted standards of decency]

did not breach clause 1.5 [feature program which has an explicit sexual theme]

of the Commercial Radio Australia Codes of Practice and Guidelines March 2013.

ACMA Investigation Report – The Kyle and Jackie O Hour of Power broadcast by 2AAY on 25 May 2013

ComplaintThe Australian Communications and Media Authority (the ACMA) received a complaint about The Kyle and Jackie O Hour of Power program (the program) broadcast by Radio Albury Wodonga Pty Limited, the licensee of 2AAY Albury, on 25 May 2013.

The complaint relates to comments made by Jackie O explaining the contents of a call from a listener which was censored by the licensee.

The investigation has considered the licensee’s compliance with clause 1.3 (generally accepted standards of decency) and clause 1.5 (feature program which has an explicit sexual theme) of the Commercial Radio Australia Codes of Practice and Guidelines 2013 (the Codes).

The programThe Kyle and Jackie O Hour of Power program is currently broadcast on Saturdays from 8.00 am to 10.00 am by the licensee. Southern Cross Austereo Pty Ltd1 advised that the program is broadcast across a number of its metropolitan and regional radio stations and has been scheduled at various times over the past year sometimes at different times in different markets.

The program replays highlights from The Kyle and Jackie O Show which is a breakfast radio show hosted by Kyle Sandilands and Jackie O, and airs a mix of celebrity interviews, gossip, music, giveaways, phone topics and stunts.

On 25 May 2013, a listener called the station to participate in the ‘Is it normal?’ segment. The licensee describes this segment as:

[A] popular stable amongst our demographic audience. The intention of the segment is to allow our listeners to interact with the show in a light hearted and informal manner.

...

The segment is a regular segment on the show and the show’s listeners know it well. It is usually done once or twice a month. It is intended to be fun and light hearted. Examples of past callers have included:

when I blow my nose I squirt water from my eyes I collect my own hair I count for no reason in my head all the time I have to wear thongs in the shower, even in my own shower as I hate the feeling

of tiles on my feet I hiccup and cough at the same time I have a fear of circles especially clustered ones I like looking at pictures of slugs.

In this case, the caller proceeded to explain that her sister-in-law ‘does something very, very strange’. The licensee censored her statements by bleeping them out.

After the call ended, the hosts stated:

KS: Oh, oh, I dunno, we chopped her off at a really bad time there.

1 Radio Albury Wodonga Pty Limited is a wholly-owned subsidiary of Southern Cross Austereo Pty Ltd.

ACMA Investigation Report – The Kyle and Jackie O Hour of Power broadcast by 2AAY on 25 May 2013 2

JO: I’m sorry.

KS: It can be all misconstrued.

JO: What was that?

KS: But I’m saying, in my circles that’s normal [laughter].

JO: I don’t even know how to respond to that.

KS: Come on.

Jackie O then announced that many people had called in asking for details of what the woman had said. The following exchange then occurred between the hosts:

JO: I know you don’t like to feel you’re missing out so I thought I would let you know what she said but…

KS: How?

JO: …in a much nicer, I’ll use code. Ok…

KS: Ok, here we go.

JO: So, everyone will know what I’m talking about.

KS: Let’s see what Jackie’s code is.

JO: But bearing in mind, when she said it, it was very filthy. OK, so what she alluded to, she said ‘Is it normal that when I’m intimate with my husband …’

KS: Oh yeah, that word wasn’t used.

JO: Yeah, she uses his results, is that the right word, results? Like the outcome from him?

KS: Results.

JO: The outcome from him.

KS: The outcome, yeah.

JO: As a facial moisturiser.

A transcript of the relevant broadcast is at Attachment A.

AssessmentThis investigation is based on submissions from the complainant and the licensee, the complaint made to the licensee and the licensee’s response, and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified in the report.

In assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material that was broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener or viewer.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does


read between the lines in the light of that person’s general knowledge and experience of worldly affairs2.

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn.

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Codes have been breached.

Issue 1: Generally accepted standards of decencyRelevant clause of Codes

Program Content and Language, including Sex and Sexual Behaviour

1.3 (a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.

(b) For the purposes of determining:

(i) the audience of the relevant program; and

(ii) the demographic characteristics of that audience,

regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

SubmissionsThe submissions of the complainant and licensee are at Attachment B.

FindingThe licensee did not breach clause 1.3 of the Codes.

ReasonsGenerally accepted standards of decency

Clause 1.3(a) requires the ACMA to consider the meaning of the phrase ‘generally accepted standards of decency’.

The objects of the BSA include the promotion of the availability of a diverse range of radio services to audiences throughout Australia.3 Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.4

Determining the current consensus of recognised standards of decency is challenging because there is a range of standards within the community and there will always be different views on these matters.

The ACMA acknowledges that such standards are not hard and fast, either over time or across all sections of the community. Diverse audiences in Australia will not have everyday

2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167. 3 See paragraph 3(1)(a) of the BSA.4 See paragraph 3(1)(h) of the BSA.


tastes and standards in common. The majority of people in the community are likely to accept that material that they find coarse or offensive may not be similarly judged by others.

The licensee has submitted that the content did not offend standards of decency because the language used to describe the censored material was ‘careful and considered’, the treatment of the subject matter was light-hearted, and there was a lack of concern on the part of listeners of the program.

‘Generally accepted standards of decency’ is a broad concept and is not only defined by material that might be considered ‘indecent’. In determining whether a breach of clause 1.3 has occurred, the ACMA must reflect on whether material, which may not be to everyone’s taste, so offends generally accepted standards that it is inappropriate for broadcast.

Previously where the ACMA has found breaches of the decency provisions of the Codes it has reflected on a number of matters, including:

> the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive;5

> the tenor or tone of the broadcast: for example, was it light-hearted or threatening; matter-of-fact or salacious;6

> the language used in the broadcast: for example, was it abusive, profane, vulgar or lewd;7 and

> the attitudes conveyed: for example, contemptuous disregard for human life or suffering.8

Demographic characteristics of the audience of the relevant program

Clause 1.3(a) of the Codes requires the ACMA to have regard (though not sole regard) to the demographic characteristics of the audience of the relevant program. Pursuant to clause 1.3(b) of the Codes, for the purposes of determining the audience of the relevant program and the demographic characteristics of that audience, regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the past 12 months.

In this case, the licensee submitted that official ratings surveys are not conducted within the licence area of its service. Given that ratings surveys are not conducted in the licensee’s area, the ACMA is not able to have regard to them in relation to this investigation.

The licensee has provided the ACMA with survey results for ‘rest of Victoria’ (that is, Victoria excluding Melbourne) and for Melbourne, which are relevant in assessing the likely demographic characteristics of the audience of the licensee’s broadcast of the Kyle and Jackie O Hour of Power:

Rest of Victoria survey

The licensee provided the ‘Nielsen’s Consumer & Market Views’ survey results for the program covering the ‘rest of Victoria’ for:

> The 12 month period ending May 2013 for the weekday timeslot of 6.00 pm to 7.00 pm. This survey indicates that the majority of the audience is between

5 For example, ABA Investigation 1270, and ACMA Investigations 1628 and 2266.6 For example, ACMA Investigations 2751 and 2848.7 For example, ACMA Investigations 1628, 1717 and 2848.8 For example, ABA Investigation 1270 and ACMA Investigations 2598 and 2848.


18 and 29 years of age. Prior to March 2013, the licensee broadcast the program between 6 pm and 7 pm, Monday to Thursday.

> The 12 month period ending July 2013 for the weekend timeslot of 8 am to 10 am. This survey indicates that the majority of the audience is between 18 and 29 years of age.

Melbourne survey

The licensee also provided an official ratings survey for its network affiliate, Fox FM in Melbourne, which broadcasts the Kyle and Jackie O Hour of Power on Saturday mornings between 8.00 am to 10.00 am. The survey results for Fox FM indicate that the majority of the audience is aged between 15 and 29 years.

In respect of the survey results, the licensee submitted that:

…the Kyle & Jackie O Hour of Power was only placed in a Saturday morning timeslot between 8 am and 9 am from 2 March 2013. The timeslot was extended by an hour to between 8 am and 10 am on Saturdays from 23 April 2013. This scheduling applied to both the licensee and certain SCA metropolitan licensees, including Fox FM. Accordingly, we are unable to provide survey data dating back the previous 12 months. I can however provide the results for Nielsen Surveys #3 and #4 which covers the periods 24 February to 30 March 2013 and 7 April and 11 May 2013; and 7 April to 11 May 2013 and 19 May to 22 June 2013…

[…]

Whilst the audience data submitted with this response does not directly relate to Albury, we consider that there is no reason to conclude that the demographics between the ‘rest of Victoria’ and Melbourne are different. Indeed, statistics from the 2011 census reveal very similar demographics, particularly in relation to age, for each of Albury-Wodonga and Greater Melbourne.

Although the survey results outlined above do not provide a clear picture of the audience of the Kyle and Jackie O Hour of Power, as broadcast by the licensee between 8 am and 10 am on 25 May 2013, the information available indicates that the audience of the program is generally younger – aged between 15 and 29 years.

Assessment of the content against the Code provision

The complaint is that comments made by Jackie O were ‘disgusting’, ‘vile’ and sexually explicit. The complainant also submitted that Kyle Sandilands’ comment, ‘Come on’ was a reference that was, ‘obvious to the listeners that it was connected to the description that Jackie O had just given’.

In response to queries from listeners asking about what was censored from the call, Jackie O said:

…what she alluded to, she said ‘Is it normal that when I’m intimate with my husband …she uses his results, is that the right word, results? Like the outcome from him?... As a facial moisturiser.

The ACMA considers that the ordinary, reasonable listener would have understood from this statement that the call was about a woman who smears her husband’s semen on her face


following sexual intercourse. This impression would have been reinforced by the following comment made by Kyle Sandilands:

What she said was when I get [bleep] by my husband [bleep] on my face.

The ACMA acknowledges that some people will hold the view that the segment offended standards of decency because:

> the comments dealt with sexual subject matter; and

> having made the decision to censor the material, it was then inappropriate to explain the substance of what was censored, despite reported requests from callers to do so.

However, having regard to generally accepted standards of decency for the purposes of clause 1.3, the ACMA makes the following observations which, taken together, inform its view that the material broadcast did not offend those standards:

> the explanation Jackie O gave of the censored material was brief;

> steps were taken to avoid sexually explicit language and to use instead euphemisms such as ‘intimate’, ‘results’ and ‘outcome’;

> the comment ‘Come on’ by Kyle Sandilands preceding the description by Jackie O was puerile innuendo;

> the comments were made in the context of a light-hearted segment where listeners phone in to relate a story about a person’s behaviour and ask whether it is ‘normal’; and

> the program’s audience is generally younger and would have been familiar with the tenor and tone of the ‘Is it normal?’ segment, the types of subject matter traversed, and the style of the hosts, Jackie O and Kyle Sandilands.

Of course, if the premise of a segment makes it inherently unsuitable for broadcast, the euphemistic, light-hearted tone, or unscripted nature of the material will not ‘cure’ it. In that regard, the ACMA notes that the ‘Is it normal’ segment was not constructed with a sexual theme and its premise was not inherently unsuitable. The ACMA also notes that the treatment of the caller’s question, although no doubt tasteless, did not raise any issues of great sensitivity; it was not abusive or profane; and it did not involve the exploitation of a vulnerable person or trivialise the suffering of victims of traumatic events.9

Accordingly, the ACMA concludes that on balance, the content did not breach clause 1.3(a) of the Codes.

Issue 2: Feature program which has an explicit sexual themeRelevant clause of Codes

Program Content and Language, including Sex and Sexual Behaviour

1.5 Licensees must not broadcast a feature program which has an explicit sexual theme as its core component unless it is broadcast between 9.30 pm and 5.00 am and an appropriate warning is made prior to commencement of the program and at hourly intervals during broadcast of the program.

9 Compared with for example, the subject matter of investigations 1270, 2266, 2598, 2751 and 2848.


SubmissionsThe submissions of the complainant and licensee are at Attachment B.

FindingThe licensee did not breach clause 1.5 of the Codes.

ReasonsThe program was broadcast on Saturday 25 May, between 8.00 am and 10.00 am.

Clause 1.5 prohibits licensees from broadcasting a ‘feature program which has an explicit sexual theme as its core component’ unless it is broadcast between 9.30 pm and 5.30 am and includes appropriate warnings.

As the licensee submitted, the theme of the ‘Is it normal?’ segment is to explore notions of what is normal in ‘a light hearted and informal manner’. The range of themes that have been explored in the segment is discussed above.

The ACMA considers that as the ‘core component’ of the segment is not ‘an explicit sexual theme’, it does not fall within the scope of clause 1.5.

Therefore, the licensee did not breach clause 1.5 of the Codes.


Attachment ATranscript – Kyle & Jackie O Hour of PowerJO: [Caller]

KS: [Caller]’s rung through. Hello [caller].

JO: A last minute ring in.

KS: Welcome to ‘Is it normal’.

Caller: Hi. Um, my sister-in-law, she does something very, very strange.

KS: Mmm.

Caller: What she does is, um, if she’s [beep].

JO: Oh, thank you [caller] and have a good day.

KS: [laughter] How did that happen?

JO: How did that get through?

KS: That’s normal. That’s normal.

Caller: Um, she does and she tells everybody.

KS: You gotta go. You gotta go, I’m hanging up on you.

Caller: The more she drinks…

KS: Oh, oh, I dunno, we chopped her off at a really bad time there.

JO: I’m sorry.

KS: It can be all misconstrued.

JO: What was that?

KS: But I’m saying, in my circles that’s normal [laughter].

JO: I don’t even know how to respond to that.

KS: Come on.

JO: We’ve had a lot of people phone in saying, ‘What did the woman say that got beeped out?’.

KS: Well obviously we can’t say it because it got beeped out.

JO: I know there…

KS: But man, it was very, very funny. I thought it was normal.

JO: I know you don’t like to feel you’re missing out so I thought I would let you know what she said but…

KS: How?

JO: …in a much nicer, I’ll use code. Ok…

KS: Ok, here we go.


JO: So, everyone will know what I’m talking about.

KS: Let’s see what Jackie’s code is.

JO: But bearing in mind, when she said it, it was very filthy. Ok, so what she alluded to, she said ‘Is it normal that when I’m intimate with my husband …’

KS: Oh yeah, that word wasn’t used.

JO: Yeah, she uses his results, is that the right word, results? Like the outcome from him?

KS: Results.

JO: The outcome from him.

KS: The outcome, yeah.

JO: As a facial moisturiser.

KS: Oh yes, that sort of works.

JO: That’s, that’s, you understand where she, now she obviously …

KS: Man, she did not say it like that at all.

JO: [laughter] If you heard how she said it, you would understand …

KS: What she said was when I get [beep] by my husband [beep] on my face.

JO: Ok, whoah [laughter].

KS: I bet that all got beeped as well.


Attachment B

Complainant’s submissionsBy letter dated 27 May 2013, the complainant submitted to the licensee that:

I was totally disgusted when listening to the Kyle & Jackie O on (Saturday) 25th May 2013…

A segment titled ‘Weird things we do” was bleeped out momentarily, then “Jackie O” described what was on the bleeped. She described to listeners, two people having sex, and one of them smearing semen over the face of the caller. Kyle then talking using the word “come” in a sentence that obvious to the listeners that it was connected to the description that Jackie O had just given.

HOW LOW DO YOU HAVE TO GO TO GENERATE INCOME! Why do you support Kyle & Jackie O who has less intellect than people who are mentally disabled… How dare you bring broadcasting and journalism into the realms of verbal sewerage!

Your company you represent and the presenters you employ bring humanity to an all time low in a description of the species. You have abused me and that of my family in the filth that you have allowed to enter our minds.

I assert that the content is in breach of the Radio Code of Practice.

Licensee’s submissionsBy letter dated 27 June 2013, the licensee responded to the complainant as follows:

[…]

The Segment entitled “Is it normal?” is a popular stable amongst our demographic audience. The intention of the Segment is to allow our listeners to interact with the show in a light hearted and informal manner. During the Segment, listeners raised a variety of issues with our announcers. As you note, part of the Segment was censored. In response to listener queries about the reasons for this censorship, our announcer Jackie O sought to explain part of the caller’s comment using careful and considered language with words “results” and “outcome”.

Having regard to the language used by our announcer, the light hearted manner in which the subject matter was addressed and the greater context of the Segment, we do not believe that the Segment would have been of concern to our listeners. We can confirm that yours was the only complaint we received with respect to the Segment, which was broadcast around the country.

Notwithstanding the above, we acknowledge your concerns and sincerely apologise for any unease you may have felt when listening to the Segment. We have a very diverse audience and sometimes the content which some listeners may find entertaining will not be so to others. Please be assured that it is certainly not our intention to create content which causes our listeners concern.

As a commercial broadcaster, we are acutely mindful of our obligations to balance the interests of our listeners with community standards. Please know that the suitability of our content for particular audiences is a matter to which we give a great deal of thought.


Your correspondence has been considered seriously and has been forwarded to the Content Director of the program for review so that your feedback may be taken into account for future programming.

Once again, we apologise for any concern or unease which the segment may have caused you and thank you for taking the time to bring this matter to our attention …

By letter dated 5 September 2013 and email dated 30 September 2013, the licensee submitted to the ACMA that:

[…]

Audience Information

The ACMA has requested ‘information and/or documentation about the audience of the relevant program and the demographic characteristics of that audience, including if possible the results of any official ratings surveys of the licensee’s service in the 12 months prior to the date of broadcast in question’.

(a) Background

For the purposes of this response, it is relevant to note that the Kyle & Jackie O Hour of Power is one of SCA’s national network shows in that it is broadcast across a number of SCA’s metropolitan and regional radio stations. The program has been scheduled at various times over the past year and sometimes at different times in different markets.

On 2 March 2013 the program was placed in a Saturday morning timeslot between 8 am and 9 am. This timeslot was extended by an hour to between 8 am and 10 am on Saturdays from 23 April 2013. This scheduling applied to both the Licensee and its metropolitan licensee counterparts.

Prior to March 2013 the Licensee broadcast the program between 6 pm and 7 pm, Monday to Thursday.

(b) Available data

While official ratings surveys are not conducted within the licence area of the Licensee’s service, SCA has data from ‘Nielsens Consumer & Market Views’, which is a national omnibus survey that SCA contributes its national network show times to so as to gain some indication of its regional market audiences of these programs. With respect to the Kyle & Jackie O Hour of Power, the data gathered relates to the ‘rest of Victoria’ (i.e. excluding Melbourne) for the pre-March 2013 timeslot of 6 pm to 7 pm. This is the only measurement SCA has which applies to the Licensee’s audience of the program. Appendix 1 which is attached to this response sets out this information.

Attached as Appendix 2 is data extracted from the most recent official ratings survey for SCA’s Melbourne licensee, Fox FM. The survey covers the Saturday morning 8 am to 10 am timeslot in which the Kyle & Jackie O Hour of Power is broadcast by Fox FM and covers the same period in which the Segment was broadcast by the Licensee [footnote omitted].

Whilst the audience data submitted with this response does not directly relate to Albury, we consider that there is no reason to conclude that the demographics between the ‘rest of Victoria’ and Melbourne are different. Indeed, statistics from the 2011 census reveal


very similar demographics, particularly in relation to age, for each of Albury-Wodonga and Greater Melbourne.

[…]

Fox FM Survey Period

... the Kyle & Jackie O Hour of Power was only placed in a Saturday morning timeslot between 8 am and 9 am from 2 March 2013. The timeslot was extended by an hour to between 8 am and 10 am on Saturdays from 23 April 2013. This scheduling applied to both the Licensee and certain SCA metropolitan licensees, including Fox FM. Accordingly, we are unable to provide survey data dating back the previous 12 months. [We] can however provide the results for Nielsen Surveys #3 and #4 which covers the periods 24 February to 30 March 2013 and 7 April and 11 May 2013; and 7 April to 11 May 2013 and 19 May to 22 June 2013 (see attached). Also attached is a copy of the Nielsen survey periods for metropolitan radio.

Rest of Victoria Survey

The Rest of Victoria survey covers the 12 month period from 12 July 2012. However, we have extracted survey information from May 2012 and done age breakouts from that time. Again, [we] note that it covers periods during which the show was not broadcast in its current timeslot.

‘Is it Normal’ Segment

The segment is a regular segment on the show and the show’s listeners know it well. It is usually done once or twice a month. It is intended to be fun and light hearted. Examples of past callers have included:

when I blow my nose I squirt water from my eyes I collect my own hair I count for no reason in my head all the time I have to wear thongs in the shower, even in my own shower as I hate the feeling

of tiles on my feet I hiccup and cough at the same time I have a fear of circles especially clustered ones I like looking at pictures of slugs.


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