Investigation Report No. 2814

File No. ACMA2012/714-1

Licensee Channel Seven Melbourne Pty Ltd

Station TV4ME

Type of Service Datacasting Service

Name of Programs All About Animals, 4WD TV Pro Tips, CNET TV, Escapes 4 Me, Gasoline, and Channelvision

Date/s of Transmission

9, 10, 11, 21 and 22 March 2012.

Relevant Legislation/Code

Clauses 2, 4, 13(1), 13(3), 14(1) and 14(2) of Schedule 6 to the Broadcasting Services Act 1992

Investigation findings Breach of subclause 14(1) of Schedule 6 to the Broadcasting Services Act 1992 (the

Act) (provision of a datacasting service in breach of licence condition).

ACMA Investigation Report – All About Animals, 4WD TV Pro Tips, CNET TV, Escapes 4 Me,Gasoline, and Channelvision transmitted by TV4ME on 9, 10, 11, 21 and 22 March 2012.

The complaintOn 17 April 2012, the ACMA received a complaint from a member of the public, alleging the licensee of datacasting service TV4ME, Channel Seven Melbourne Pty Ltd (the licensee), had breached its licence conditions, by transmitting programs that were:

[...] wholly or substantially infotainment or lifestyle programs.

The complaint has been investigated against the provisions of clause 14 of Schedule 6 to the Act.

The serviceThe licensee is licensed to provide a datacasting service under Schedule 6 to the Act. The simplified outline under Clause 1 of Schedule 6 to the Act states:

[...]

Datacasting content will be subject to restrictions. Those restrictions are designed to encourage datacasting licensees to provide a range of innovative services that are different to traditional broadcasting services.

The main restrictions on datacasting content are as follows:

(a) restrictions on the provision of certain genres of television programs;

(b) restrictions on the provision of audio content.

Datacasting licensees (other than restricted datacasting licensees) will be allowed to provide the following types of content:

(a) information-only programs (including matter that enables people to carry out transactions);

(b) educational programs;

(c) interactive computer games;

(d) content in the form of text or still visual images;

(e) Parliamentary broadcasts;

(f) ordinary electronic mail;

(g) internet content.

page 2 of 24

Relevant legislationSchedule 6 to the Act contains the following provisions that are relevant to the matters raised by the complainant:

14 Condition relating to category A television programs

(1) Each datacasting licence is subject to the condition that the licensee will not transmit matter that, if it were broadcast on a commercial television broadcasting service, would be: (a) a category A television program; or (b) an extract from a category A television program.

(2) The condition set out in subclause (1) does not prevent the licensee from transmitting an extract from a category A television program, so long as:

(a) the extract is not longer than 10 minutes; and1

(c) the extract is not combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program; and

(d) having regard to:

(i) the nature of the extract; and

(ii) the circumstances in which the extract is provided;

it would be concluded that the licensee did not intend that the extract be combined with one or more other extracts from category A television programs in such a way that the extracts together constitute the whole or a majority of a particular category A television program.

18A Genre conditions do not apply to advertising or sponsorship material

The conditions set out in [clause] 14 [...] do not prevent a datacasting licensee from transmitting advertising or sponsorship material.

Definitions provided under Schedule 6 to the Act that are relevant to this investigation are at Attachment A.

1 There is no paragraph 14(2)(b) in Schedule 6.

page 3 of 24

The programsThe complainant alleged the following programs constitute a ‘representative sample of programs’, transmitted by the licensee that fall into the ‘infotainment or lifestyle’ program genre:

All About Animals (transmitted 9 March 2012, 3:00pm) All About Animals (transmitted 21 March 2012, 3:00pm) 4WD TV Pro Tips (transmitted 9 March 2012, 7:30pm) 4WD TV Pro Tips (transmitted 22 March 2012, 3:00pm) CNET TV (transmitted 10 March 2012, 11:00am) Escapes 4 Me (transmitted 10 March 2012, 3:30pm) Gasolene (transmitted 11 March 2012, 6:00pm) Gasolene (transmitted 22 March 2012, 11:00am) Channelvision (transmitted 22 March 2012 at 7.30am).

The TV4ME website2 provides descriptions of these programs:

PROGRAM WEBSITE DESCRIPTION

All About Animals

9 [Nine] year old Olivia and her brother Jake travel around Australia meeting a wide variety of pets & animals as well as chatting to many passionate animal experts and volunteers about their experiences with animals. They also chat to some awesome Australian celebrities about their careers and their pets. From cheetah to possums, from horses to gibbons, share Olivia and Jake's exciting animal adventures each time you tune in to All About Animals!

4WD TV Pro Tips

Love 4WDing, Camping and off road adventure? This is the series for you! All you need to know for your 4WD adventure.

CNET TV CNET bring us all the latest in technology, apps, gaming and keep us up to date on Australian releases.

Escapes 4 Me Australia's top travel surfing series explores off the beaten path surf spots in the Pacific, South East Asia and Australia.

Gasolene Gasolene is a unique car focused television program for the car enthusiast, a real car show. Together Presenter Glenn Everitt and Producer Michael Curson combine years of knowledge in the automotive industry & car enthusiast scene to deliver an informative, exciting & action packed show.

Channelvision3 This week Channelvision takes a look at the Farmyard Nursery in the Nation’s Capital. We profile June Irving, Principle of Bentleys of Canberra in our Women in Business segments. Jason Lancsar presents an episode of the Coerver Coaching Master Class Series, we catch up on What's On around the nation and we take a look at a music clip from Sunchaser and the Wayward Orchestra.

Assessment2 TV4ME Website www.television4me.com.au/programs , accessed 28 June 2012.3 TV4ME Website www.television4me.com.au/programs , accessed 20 July 2012. It is noted this program synopsis

is not for the same episode of Channelvision as the one complained about.

page 4 of 24

This investigation is based on:

a recording of the programs in question, provided by the licensee the complainant’s submission to the ACMA dated 13 April 2012 the licensee’s submission to the ACMA on 22 June 2012 the licensee’s response to the ACMA’s preliminary investigation report dated

9 November 2012 publicly available information, the sources of which are identified below.

IssuesThe provision of datacasting services is regulated under Schedule 6 to the Act. Licensees providing datacasting services are generally prohibited from providing certain genres of television programs (‘category A’ and ‘category B’ television programs), subject to some exceptions. This restriction is to ensure datacasting licensees provide a service that is different from a traditional broadcasting service. Information-only programs and educational programs are not category A television programs (subclause 13(3) of Schedule 6 to the Act). Extracts of category A programs are permitted, providing the extracts meet certain requirements.

The complainant alleged the licensee has been transmitting programs that are wholly or substantially infotainment or lifestyle programs (a category A television program under paragraph 13(1)(e) of Schedule 6 to the Act).

The ACMA has formed the view that some of the programs cited by the complainant could fall into the following genres of category A television programs specified in subclause 13(1) of Schedule 6 to the Act:

a sports program

an infotainment or lifestyle program

a children’s entertainment program.

The licensee has submitted that the programs in question (except for Escapes 4 Me) are information-only programs and are therefore not in breach of the licence condition at clause 14 of Schedule 6 to the Act. The licensee submitted that Escapes 4 Me contains extracts of programs that are permitted to be shown under subclause 14(2) of Schedule 6 to the Act.

How are information-only programs different to infotainment or lifestyle programs?

Infotainment or lifestyle

The Act defines an infotainment or lifestyle program as one:

[...] the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.

page 5 of 24

Information-only

Relevantly for this investigation, clause 4 of Schedule 6 to the Act defines an information-only program as one:

[...] the sole or dominant purpose of which is to:

(a) provide factual information, or directly-related comment, about any of a wide range of matters, including but not limited to any of the following:

(i) products;(ii) services;(iii) community activities;(iv) domestic or household matters;(v) private recreational pursuits or hobbies;[...]

[...] where there is not a significant emphasis on dramatic impact or entertainment.

The Explanatory Memorandum (EM) to the Act provides additional guidance about the meaning of ‘not a significant emphasis’,

A key feature of an ‘information-only’ program is that there must be little or no emphasis on dramatic impact or entertainment value. This is intended to distinguish such programs from Category A or B programs, particularly such genres as ‘infotainment’, where there is heavy emphasis on entertainment.

Making the distinction

The ACMA considers the key questions posed in assessing whether a program is an information-only program or an infotainment or lifestyle program are:

What is the sole or dominant purpose of the program?

Does the program have a significant emphasis on dramatic impact or entertainment?

Other issues

In respect of the program All About Animals considered below, it will also be necessary to determine whether the program is a children’s entertainment program.

In respect of Escapes 4 Me considered below, it will also be necessary to determine whether it includes a sports program.

Submissions

Complainant’s submissionThe complainant submitted:

The channel [TV4ME] has been broadcasting many programs [...] which are wholly or substantially infotainment or lifestyle programs. This is a category of programming which is prohibited from being transmitted by a datacast channel according to the licence conditions for datacasters [...]

This submission applies to the six programs discussed in this investigation report.

page 6 of 24

Licensee’s submissionThe Licensee submitted:

[...] each of the Programs, other than Escapes 4 Me is appropriately categorised as an “information only” program as defined in Clause 4 of Schedule 6 to the Act and is therefore appropriate for inclusion in a datacasting service.

Escapes 4 Me is actually not a program in itself, but is clearly three separate excerpts...and therefore the content falls within the exemption at clause 14(1).

Issue 1: Is the program All About Animals a category A program?

Complainant’s submissionThe complainant identified All About Animals (transmitted 9 March 2012 at 3.00pm and 21 March 2012 at 3.00pm) as an infotainment or lifestyle program that is prohibited from being transmitted on a datacasting service.

Licensee’s submissionIn relation to All About Animals, the licensee stated:

This program is an information only program about animals which is directed towards children. The program consists of various short segments, generally in the form of an interview conducted by one or both of the program’s two hosts (both children) and a subject, in relation to either a domestic, farm or wild animal, or associated product or service. Each of the segments is informative, at a level that would be appropriate for primary school age children.

While there is a very limited amount of content in the program that is entertaining (such as a brief segment between the two children where a joke is told) when considered as a whole the dominant emphasis of the program is on providing factual information. Because the program is directed towards children it is necessary that the information is conveyed in a way that children will understand and remember. However, we do not believe that there is a significant emphasis on dramatic impact or entertainment.

FindingThe program All About Animals is a category A television program (an information or lifestyle program, as well as a children’s entertainment program). Its transmission is therefore a breach of clause 14(1) of Schedule 6 to the Act.

page 7 of 24

ReasonsThe licensee submitted that All About Animals is an information-only program. In determining whether All About Animals is an information-only program, the ACMA considered the following:

What is the sole or dominant purpose of the program?

The ACMA considers the dominant purpose of All About Animals is to provide a child audience with factual information and direct commentary about various animals, pet care and animal-related activities.

Does the program have a significant emphasis on dramatic impact or entertainment?

The ACMA is of the view that the episodes of All About Animals have a significant emphasis on entertainment for the following reasons:

The children participate in a number of entertaining, child-focused activities, such as attending a horse riding school that catered to children and a ‘Kids 2 Keepers’ course held at a reptile park. The hosts are shown to be enjoying themselves in these segments.

The children are filmed in a variety of localities in various states, such as farms, zoos, aquariums and famous landmarks such as Bondi Beach and Darling Harbour, as opposed to presenting from a studio set.

The ‘Celebrity Owner’ segment provides viewers with an upbeat conversation about a celebrity’s pet. The celebrity in each segment is asked questions about tricks the pet can do and also asked a number of personal questions about the celebrity, unrelated to animals. The segment involves joking and laughing between the celebrity and the host that is engaging and entertaining for a child to watch.

The ‘Viewers’ Pets’ segment depicts photos and ‘fun facts’ sent in from viewers about their pets. The pet owners are all children and the ‘fun facts’ are childlike, humorous and entertaining.

Viewers are entertained by the ‘Animal Joke’ segment where a joke is shared between the hosts. Viewers are also encouraged to send their own jokes to the show.

Although the dominant purpose of the program is to provide factual information and direct commentary about animals, the ACMA considers the episodes viewed have a significant emphasis on entertainment. As a result, rather than a permitted information-only program, All About Animals is an infotainment or lifestyle program.

Further, the ACMA is of the view that the program is also a category A television program on the basis that it is a children’s entertainment program.

The ACMA has already explained above why it considers the program has a significant emphasis on entertainment. In addition to being entertaining, the ACMA considers the program is made specifically for children for the following reasons:

The licensee’s submission states the program ‘is directed towards children’.

The program is presented by children.

page 8 of 24

The hosts of the program are aged approximately nine and 14 years of age and drive

the content of the show. They conduct the interviews, present pet tips and engage with the target child audience.

The format of the interviews and pet tips makes the subject matter accessible to and entertaining for children. For example:

- During interviews, the children ask simple questions and the interviewees respond with simple answers, that would easily be understood by the target child audience.

- The segments are short and cover a wide variety of topics that would engage a child’s interest.

- The treatment of subject matter is light and positively endorsed by the hosts. Animals are often described as ‘cute’, ‘sweet’ and ‘cool’.

The ACMA also notes that on 15 June 2011, the program series All About Animals was granted a C (Children’s) classification, in accordance with the Children’s Television Standards 2009. The criteria for C programs include a requirement that the program be ‘entertaining’4.

Summary

For the reasons stated above, the ACMA finds that All About Animals falls into both the infotainment or lifestyle genre and the children’s entertainment program genre and is therefore a category A television program (paragraphs 13(1)(e) and 13(1)(h) of Schedule 6 to the Act). Accordingly, it is the ACMA’s view that the transmission of the program All About Animals in its entirety breaches the licence condition at clause 14 of Schedule 6 to the Act.

Issue 2: Is the program 4WD TV Pro Tips a category A program?

Complainant’s submissionThe complainant identified 4WD TV Pro Tips (transmitted on 9 March 2012 at 7.30pm and 22 March 2012 at 3.00pm) as an infotainment or lifestyle program that is prohibited from being transmitted on a datacasting channel.

Licensee’s submissionIn relation to 4WD TV Pro Tips, the licensee stated:

This program is an information only program in relation to private recreational pursuits and hobbies (being four-wheel driving) and products and services directed towards that hobby. The program consists of various segments of information directed to 4WD enthusiasts including product reviews, advice in relation to buying and installing various products, and 4WD expeditions.

Again, while there is a very limited amount of content in the program that could be considered entertaining (such as some brief segments with footage from 4WD expeditions) when considered as a whole the dominant emphasis of the program is on providing factual information. In particular we note that the production values of the

4 CTS 6(b) of the Children’s Television Standards 2009.

page 9 of 24

program are low, the host and presenters present material factually and not in an entertaining way, the subject matter of the program is of limited appeal and is presented at a level of detail and specificity that would not generally be considered entertaining. For example, the episode of 9 March 2009 devotes almost 10 minutes to a review of different lights. Therefore, in our view there is not a significant emphasis on dramatic impact or entertainment.

FindingThe program 4WD TV Pro Tips is an information-only program and not a category A television program. Its transmission was therefore not a breach of subclause 14(1) of Schedule 6 to the Act.

ReasonsThe licensee submitted that 4WD TV Pro Tips is an information-only program. In determining whether 4WD TV Pro Tips is an information-only program, the ACMA considered the following:

What is the sole or dominant purpose of the program?

The ACMA considers the dominant purpose of 4WD TV Pro Tips is to provide information and directly related commentary about a private recreational pursuit or hobby (four-wheel driving) and related products and services.

Does the program have a significant emphasis on dramatic impact or entertainment?

Based on the episodes viewed, the ACMA noted the majority of segments provided factual information, commentary, tips and demonstrations on four-wheel driving topics including (but not limited to):

Products:

- comparing two 4WD light brands with warnings about cheap imitation products

- reasons why winches are important

- filter kits.

‘How-to’ demonstrations:

- installing driving lights and how to align them

- how mudflaps should be installed to meet appropriate legal requirements.

Four-wheel drive organisations or events:

- information about a deer hunting organisation.

The ‘product’ and ‘how-to’ segments, described above, provide factual information and comment. The presenters of the majority of these segments identified themselves by the business they represented, suggesting that these businesses were sponsors of the show, and that the presenters were not media professionals. These segments contained little or no emphasis on dramatic impact or entertainment value.

page 10 of 24

Some of the segments about ‘four-wheel drive organisations or events’ included additional footage that had entertaining elements. For example, the episode aired on 9 March 2012 included a segment titled ‘Thanks W.A’. This segment contained four-wheel drive footage from Western Australia (WA), coverage of an adventure show and other four-wheel drive events. The segment also voiced thanks to sponsors of a specific WA four-wheel drive event. This segment contained minimal information and the focus was on the four-wheel drive action footage that heightened the emphasis on entertainment. Viewed within the context of the entire program, however, this segment does not significantly increase the emphasis on dramatic impact or entertainment.

Summary

Under clause 4 of Schedule 6 to the Act, an information-only program is matter the sole or dominant purpose of which is to provide factual information, or directly related comment, about a range of matters (including products, services and private recreational pursuits or hobbies), where there is not a significant emphasis on dramatic impact or entertainment. The ACMA finds that 4WD Pro Tips meets the definition in clause 4 of an information-only program. Accordingly, 4WD TV Pro Tips is not a category A television program and the transmission of the program in its entirety was not in breach of subclause 14(1) of Schedule 6 to the Act.

Issue 3: Is the program CNET TV a category A program?

Complainant’s submissionThe complainant identified CNET TV (transmitted on 10 March 2012 at 11.00am) as an infotainment or lifestyle program that is prohibited from being transmitted on a datacasting channel.

Licensee’s submissionsIn relation to CNET TV, the licensee stated:

This program is an information only program directed towards technology enthusiasts. The program consists of various segments of information directed towards technology enthusiasts including reviews of various products and services.

When considered as a whole the dominant emphasis of the program is on providing factual information. The production values of the program are low, the host and presenters present material factually and not in an entertaining way, the subject matter of the program is of limited appeal and is presented at a level of detail and specificity that would not generally be considered entertaining. Therefore, in our view there is not a significant emphasis on dramatic impact or entertainment in CNET TV.

page 11 of 24

FindingThe program CNET TV is an information-only program and not a category A television program. Its transmission was therefore not a breach of subclause 14(1) of Schedule 6 to the Act.

ReasonsThe licensee submitted that CNET TV is an information-only program. In determining whether CNET TV is an information-only program, the ACMA considered the following:

What is the sole or dominant purpose of the program?

The ACMA considers the dominant purpose of CNET TV is to provide factual information or directly related commentary about technology related products.

Does the program have a significant emphasis on dramatic impact or entertainment?

The episode of CNET TV viewed contained multiple segments that provided factual information and reviews about computer, camera, television and computer game products and software. These included:

‘Tip of the Day’ segments that provided viewers with computer related tips.

‘Hot Products’ segments that reviewed and rated a variety of new products.

‘Out and About’ segment that provided an interview with a senior executive at Sony, discussing the release of a new Sony games console product.

It appears that each segment linked back to either the cnet.com.au or gamespot.com.au websites and each presenter was an employee of CNET or Gamespot and not a media professional.

While the products and software discussed on CNET TV provide entertainment for people with an interest in them, the program is confined to presenting factual information and commentary in the form of reviews of products, with little emphasis on dramatic impact or entertainment.

Summary

Under clause 4 of Schedule 6 to the Act, an information-only program is matter the sole or dominant purpose of which is to provide factual information, or directly related comment, about, for example, products, where there is not a significant emphasis on dramatic impact or entertainment. The ACMA finds that CNET TV meets the definition in clause 4 of an information-only program. Accordingly, CNET is not a category A television program and the transmission of the program in its entirety was not in breach of subclause 14(1) of Schedule 6 to the Act.

page 12 of 24

Issue 4: Is the program Escapes 4 Me a category A program?

Complainant’s submissionThe complainant identified Escapes 4 Me (transmitted on 10 March 2012 at 3.30pm) as an infotainment or lifestyle program that is prohibited from being transmitted on a datacasting channel.

Licensee’s submissionsIn relation to Escapes 4 Me, the licensee stated:

Escapes 4 Me is actually not a program in itself, but is clearly three separate excerpts from the programs Corona Safari, Planet X and Surfing Australia Life Coach. The term Escapes 4 Me is used in the Electronic Program Guide for ease of reference, however there is actually no link between the three excerpts to combine them into a single program.

Each of these excerpts is of less than 10 minutes duration and therefore, even if the content were considered to fall within category A genres, the content falls within the exemption...

FindingEscapes 4 Me includes episodes of two self-contained programs that are Category A television programs (an infotainment or lifestyle program and a sports program), in breach of subclause 14(1) of Schedule 6 to the Act.

ReasonsThe licensee submits that Escapes 4 Me comprises excerpts (extracts) from three separate programs. The copy of Escapes 4 Me provided by the licensee with its submission comprises four parts, each separated by a TV4ME promotion.

The ACMA’s analysis of the material viewed is that there are four parts in Escapes 4 Me, comprising:

three episodes of the program Corona Surfari (part one below);

an extract of a Category A television program, Planet X, not longer than ten minutes (part two below)

an extended advertisement for a surf coaching website titled SurfCoach.com, (part three below)

one episode of a program titled Sail Melbourne (part four below).

The ACMA considered each part separately below:

Part one

The first part consists of three episodes of the self-contained program Corona Surfari.

The licensee submitted that the first part of Escapes 4 Me was an extract of the program Corona Surfari. The ACMA is of the opinion, however, that Corona Surfari is a short (three minute) self-contained program and that three episodes of this self-contained program were

page 13 of 24

included in Escapes 4 Me. Each episode is focused on a different surfing destination. Each of the three separate episodes also includes a welcome and farewell by the presenter who is dressed in different outfits each time. This confirms the ACMA’s view that each episode is ‘self-contained’.

page 14 of 24

Subclause 14(1) of Schedule 6 to the Act prohibits the transmission of ‘matter’ that, if broadcast on a commercial television broadcasting service, would be a category A television program, or an extract from such a program. There is no requirement that a program referred to in that provision be in the traditional half-hour/hour format. As a result, the ACMA is satisfied that each episode of Corona Surfari is a program in itself and not an extract of a longer program.

The ACMA is aware that a series of 50 short self-contained Corona Surfari programs were produced by the media company Brand New Media5 and can be viewed as separate self-contained programs on YouTube6.

Having determined that the episodes of Corona Surfari were self-contained programs, the ACMA must determine what genre the program falls into.

What is the sole or dominant purpose of the program?

The ACMA considers the dominant purpose of Corona Surfari is to present factual information and commentary about surfing destinations.

Does the program have a significant emphasis on dramatic impact or entertainment?

‘Corona Surfari’ presents information about surfing destinations, including interviews with professional surfers, travel and destination information and surfing footage. The program has the ‘look and feel’ of a commercial travel/ lifestyle program that takes viewers on an enjoyable journey to and around each surfing destination. The ACMA is of the view that the episodes of Corona Surfari viewed contained segments that have a significant emphasis on entertainment, for example:

each episode includes a heavy emphasis on surfing action footage

each episode contains interviews with professional surfers who enthusiastically discuss their favourite surf spots and travel adventures in an engaging personal and humorous manner

each episode provides broad travel information that focuses on the exciting and enjoyable aspects of the destination.

Part one summary

For the above reasons, the ACMA finds that each episode of Corona Surfari provides factual information with a significant emphasis on entertainment, placing the program within the infotainment or lifestyle program genre, which is a category A television program (paragraph 13(1)(e) of Schedule 6 to the Act). Accordingly, it is the ACMA finds that the transmission of each Corona Surfari episode breached the licence condition at subclause 14(1) of Schedule 6 to the Act.

5 www.linkedin.com/company/brand-new-media/products?trk=tabs_biz_product accessed 15 August 2012.6 www.youtube.com/user/BrandNewMediaAus/videos?sort=dd&query=surfari&view=0&page=2 accessed 15

August 2012.

page 15 of 24

Part two

The second part is an extract from a program titled Planet X. The extract from Planet X consists of footage of a ‘street luge’ competition, with commentary. It is clear that this part is an extract of a larger Planet X program because the opening sequence previews a number of other segments in the broader program that are not shown in the extract. Based on the footage shown in the extract, Planet X fits within the definition of a sports program in clause 2 of Schedule 6 to the Act. The genre of sports program is a category A television program (paragraph13(1)(c) of Schedule 6 to the Act). However, as the extract is less than ten minutes long (7.23 minutes), the transmission of the extract did not breach the licence condition at subclause 14(1).

Part three

The ACMA considers that the third part is clearly a three minute long advertisement for the website SurfCoach.com. Clause 18A of Schedule 6 to the Act states:

The conditions set out in clauses 14 and 16 do not prevent a datacasting licensee from transmitting advertising or sponsorship material.

As genre restrictions do not apply to advertising material, the transmission of SurfCoach.com is not in breach of subclause 14(1) of Schedule 6 to the Act.

Part four

The fourth part of Escapes 4 Me consists of Sail Melbourne. Sail Melbourne provides footage, results and commentary from a sailing competition held in Melbourne7. The ACMA considers that Sail Melbourne is a self contained program of eight minutes, rather than an extract, for the following reasons:

The part commences with an opening sequence that includes a Sail Melbourne graphic and montage of sailing footage.

The part has ten distinct sections covering ten separate events in the competition. Each of the ten sections includes introductory on-screen text that identifies the type of race, racing footage, commentary from a race participant and the final race results.

The part concludes with a montage of footage showing race participants receiving medals in front of a sponsors’ wall.

The part finishes by displaying a screen that identifies the major sponsors of the race event.

As stated above, in relation to Corona Surfari, subclause 14(1) of Schedule 6 to the Act does not specify any minimum length for a program to be considered a category A television program. As a result, the ACMA is satisfied that Sail Melbourne is a program in itself and not an extract of a larger program.

7 Sail Melbourne is an annual sailing regatta around Port Phillip Bay. It is an International Sailing Federation Event.

page 16 of 24

The ACMA also conducted further research on Sail Melbourne and notes the organisation ‘Sail Melbourne’ regularly produces short programs to showcase sailing events and posts these programs on the ‘Sail Melbourne’ website8 and on YouTube9. While the same program transmitted by the licensee could not be found on these websites, programs of comparable length and style were able to viewed. The ACMA noted the programs that were posted on these sites were identified as short, discrete, self-contained episodes. They were not compiled into a longer program format.

Having determined that Sail Melbourne is a self-contained program, the ACMA must determine what genre the program falls into. The complainant submitted that Escapes 4 Me in general is an infotainment or lifestyle program. The ACMA is of the view, however, that the program, ‘Sail Melbourne’ falls within the definition of a sports program in clause 2 of Schedule 6 to the Act because the sole or dominant purpose of the program is to provide coverage of, or analysis, commentary or discussion in relation to, a competitive sailing event. The genre of sports program is a category A television program (paragraph 13(1)(c) of Schedule 6 to the Act). Accordingly, the ACMA finds that the transmission of the program Sail Melbourne breached the licence condition at subclause 14(1) of Schedule 6 to the Act.

Escapes 4 Me Summary

The ACMA accepts the licensee’s submission that Escapes 4 Me is composed of distinct parts that are not linked but the ACMA considers the first and last of those distinct parts comprise episodes of self-contained category A television programs.

As discussed above, the self-contained programs Corona Surfari and Sail Melbourne are infotainment or lifestyle, and sports programs, respectively, which are both category A television programs. Accordingly, the ACMA finds that the transmission of the programs Corona Surfari and Sail Melbourne breached the licence condition at subclause 14(1) of Schedule 6 to the Act.

Issue 5: Is the program Gasolene a category A program?

Complainant’s submissionThe complainant identified Gasolene (transmitted on 11 March 2012 at 6.00pm and 22 March 2012 at 11.00am) as an infotainment or lifestyle program, a category of programming that is prohibited from being transmitted on a datacast channel.

Licensee’s submissionIn relation to Gasolene, the licensee stated:

This program is an information only program directed towards car enthusiasts. The program consists of various segments and information directed towards car enthusiasts including technical segments, history and various car shows, and the stages of rebuilding various cars.

8 http://sailmelbourne.com.au/website/mediagallery.html accessed on 15 August 2012.9 http://www.youtube.com/user/SailMelbourneEvent accessed on 15 August 2012.

page 17 of 24

When considered as a whole the dominant emphasis of the program is on providing factual information, rather than dramatic impact or entertainment. The production values of the program are low, the host and presenters present material factually and not in an entertaining way and the subject matter of the program is very much directed towards true car enthusiasts. For example, while infotainment programs do exist that are focussed on cars, such as Top Gear, those infotainment programs include elements such as highly charismatic professional presenters, humour, celebrity interviews, and interesting/ amusing competitions between the presenters to infuse entertainment and drama. Gasolene does not have a significant emphasis on dramatic impact or entertainment.

FindingThe program Gasolene is an information-only program and not a category A television program. Its transmission was therefore not a breach of subclause 14(1) of Schedule 6 to the Act.

ReasonsThe licensee submitted that Gasolene is an information-only program. In determining whether Gasolene is an information-only program, the ACMA considered the following:

What is the sole or dominant purpose of the program?

The ACMA considers the dominant purpose of Gasolene is to provide factual information and directly related comment about a private recreational pursuit or hobby (classic car restoration) and related products and services.

Does the program have a significant emphasis on dramatic impact or entertainment?

The episodes of Gasolene viewed contained the following elements:

Coverage of classic car shows including footage and close ups of the cars displayed, interviews with the owners of the cars and commentary by the host of Gasolene. These segments also included interviews with the major sponsor of the classic car shows, Shannon’s Insurance.

A segment called ‘Project Warhorse’ (which follows the presenter’s rebuilding of a car), during which the host provides specific information about a brand of shock absorbers, recommending them to viewers.

‘Tech Files’ segments that provided information about classic car parts and car restoration. The segments included tips from the host and also referred to websites that appeared to be the retailers of the parts discussed.

The majority of the two episodes of Gasolene viewed consist of interviews conducted at car shows. The format of these interviews includes the host introducing each car by pointing out significant features and then asking car owners questions about their personal car restoration process. The car owners respond by providing factual information about various elements in their car. The presenter and interviewees are enthusiastic in their discussion about the cars; however the information presented is still factual with directly related commentary. This enthusiasm is not significantly emphasised and has little entertainment value.

page 18 of 24

page 19 of 24

The focus of the ‘Tech Files’ and ‘Project Warhorse’ segments is to provide information for car enthusiasts. These segments do not emphasise dramatic impact or entertainment and are presented in such a technical and specific way they would likely only be of interest to someone who restores classic cars.

Summary

Under clause 4 of Schedule 6 to the Act, an information-only program is matter the sole or dominant purpose of which is to provide factual information or directly related comment about matters such as, for example, products and private recreational pursuits or hobbies, where there is not a significant emphasis on dramatic impact or entertainment. In the ACMA’s view Gasolene meets the definition in clause 4 of an information-only program. Accordingly, Gasolene is not a category A program and therefore the transmission of the programs was not in breach of subclause 14(1) of Schedule 6 to the Act.

Issue 6: Is the program Channelvision a category A program?

Complainant’s submissionThe complainant identified Channelvision (transmitted on 22 March 2012 at 7.30am) as an infotainment or lifestyle program, a category of programming that is prohibited from being transmitted on a datacast channel.

Licensee’s submissionIn relation to Channelvision, the licensee stated:

The program is an information only program in relation to Canberra, including community activities, products, services and travel matters. The episode in question is primarily focused on information regarding the National Arboretum, and includes a lengthy interview with John Mackay (Chair of the National Arboretum), an interview with Alfred Galvstian (sic) in relation to Coerver Soccer Coaching in the ACT (including some soccer drills and activities), and a brief cooking segment (conducted by a young amateur cook).

In our view, when considered as a whole, Channelvision does not have a significant emphasis on dramatic impact or entertainment.

FindingThe program Channelvision is an information-only program and not a category A television program. Its transmission was therefore not a breach of subclause 14(1) of Schedule 6 to the Act.

page 20 of 24

ReasonsThe licensee submitted that Channelvision is an information-only program. In determining whether Channelvision is an information-only program, the ACMA considered the following:

What is the sole or dominant purpose of the program?

The dominant purpose of Channelvision is to provide information about community activities and services (see definition of ‘community activity’ in subclause 4(8) of Schedule 6 to the Act) in the Canberra region.

Does the program have a significant emphasis on dramatic impact or entertainment?

The episode of Channelvision viewed contained the following elements:

an interview with the Chair of the National Arboretum Board that factually described how work on the Arboretum was progressing and what services are currently available for visitors

an interview with the founder of an international soccer coaching school who was visiting Australia, including factual information about services the coaching school provides

a cooking segment titled ‘Cooking with Chelsea’ where a young girl demonstrated how to make chocolate covered fruit.

The interview with the Chair of the National Arboretum Board provided factual information about a community activity, that is, a ‘tourist attraction’. The interview was of the ‘talking heads’ variety with little additional footage and little or no emphasis on dramatic impact or entertainment.

The interview regarding the soccer school and its services provided factual information and commentary about the service, with little emphasis on dramatic impact or entertainment.

The segment titled ‘Cooking with Chelsea’ depicted a young girl demonstrating how to make chocolate covered fruit pieces. The segment is disassociated from the rest of the program which discusses Canberra-specific activities and services. Based on the choice of presenter, who provides a ‘cute’ element, it appears the intention of the segment is to entertain. The segment, however, is approximately five minutes of the 27 minute long program and, in the overall context of the program, the ACMA does not consider that this entertainment segment was sufficiently significant to the program as a whole as to exclude the program from the genre of information-only program.

Summary

Under clause 4 of Schedule 6 to the Act, an information-only program is matter the sole or dominant purpose of which is to provide factual information or directly related comment about a range of matters (including services and community activities), where there is not a significant emphasis on dramatic impact or entertainment. The ACMA finds that Channelvision meets the requirements of an information-only program. Accordingly,

page 21 of 24

Channelvision is not a category A television program and its transmission was not in breach of subclause 14(1) of Schedule 6 to the Act.

Action taken by the licensee On 9 November 2012 the licensee responded to the ACMA’s preliminary investigation report advising that the following steps would be taken to ensure future compliance with datacasting requirements under the Act. The steps are to:

Provide a copy of the ACMA’s decision to the external provider of TV4ME

Remove the programs in breach of subclause 14(1) of Schedule 6 to the Act from the service and review all other currently scheduled programs for compliance

Provide relevant employees of the external provider of TV4ME with datacasting compliance training

Implement systems to ensure additional oversight of the TV4ME including:

o Regular meetings between the licensee and the external provider of TV4ME

o Regular compliance reports provided to the licensee by the external provider of TV4ME

o A requirement to obtain third party legal advice on regulatory compliance for an content proposed to be scheduled, that could potentially be prohibited under Schedule 6 to the Act

o A requirement to update advisory notes for external program producers, reflecting the ACMA’s investigation findings.

The licensee has also agreed to provide an assessment report to the ACMA within the next six months on the steps taken to ensure compliance.

As the compliance issues raised in this investigation appear to have been appropriately addressed by the licensee, the ACMA will not be taking further action in respect of the breach it has found, at this time.

page 22 of 24

Attachment A

2 Definitions

[...]

infotainment or lifestyle program means a program the sole or dominant purpose of which is to present factual information in an entertaining way, where there is a heavy emphasis on entertainment value.

[...]

sports program means a program the sole or dominant purpose of which is to provide:

(a) coverage of one or more sporting events; or

(b) analysis, commentary or discussion in relation to one or more sporting events;

or both, but does not include a sports news bulletin.

4 Information-only programs

(1) For the purposes of this Schedule, an information-only program is matter the sole or dominant purpose of which is to:

(a) provide factual information, or directly-related comment, about any of a wide range of matters, including but not limited to any of the following:

(i) products;(ii) services;(iii) community activities;(iv) domestic or household matters;(v) private recreational pursuits or hobbies;(vi) legal rights, obligations or responsibilities;(vii) first aid, health or safety matters;(viii) emergencies or natural disasters;(ix) rural matters;(x) travel matters;(xi) crime prevention matters; or

(b) enable and/or facilitate the carrying out and/or completion of transactions;

or both, where there is not a significant emphasis on dramatic impact or entertainment.

[...]

(8) In this clause:

community activity means:

(a) a meeting, event, performance or other activity that can be attended by:

(i) the public; or

(ii) a section of the public; or

(iii) members of a particular club, society or organisation; or

page 23 of 24

(b) the activity of visiting an institution, a tourist attraction or other place; whether on payment of a charge or otherwise.

product includes real property.

services means any services, benefits, rights, privileges or facilities that are capable of being provided, granted or conferred:

(a) in trade or commerce; or(b) by a government or government authority; or(c) in any other way.

13 Category A television programs

(1) For the purposes of this Division, each of the following television programs is a category A television program:

(a) a drama program;(c) a sports program;(d) a music program;(e) an infotainment or lifestyle program;(f) a documentary program;(g) a ―reality television‖ program;(h) a children’s entertainment program;(i) a light entertainment or variety program;(j) a compilation program;(k) a quiz or games program;(l) a comedy program;(m) a program that consists of a combination of any or all of the above programs.

[...]

(3) For the purposes of this Division, neither of the following television programs is a category A television program:

(a) an information-only program;(b) an educational program.

page 24 of 24