Investigation Report No. 2267

Transcription

1 Investigation Report No File No. ACMA2009/2040 Licensee Multicultural Community Radio Association Ltd. Station 2OOO, Sydney Type of Service Community radio Name of Program Nawaa-E-Sarosh Date of Broadcast 15 August 2009 Relevant Legislation/Code Clauses 9(1)(b) and 5(2) of Schedule 2 to the Broadcasting Services Act 1992 Investigation conclusion Breach of clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 [Advertising] on 15 August 2009 between 1.00 pm and 2.00 pm; and Breach of clause 5(2) of Schedule 2 to the Broadcasting Services Act 1992 [Records of matter broadcast] between 10 and 22 August 2009.

2 The complaint On 15 August 2009, the Australian Communications and Media Authority (the ACMA) received a written complaint alleging Multicultural Community Radio Association Ltd, the licensee of 2OOO, was not operating in accordance with a condition of its licence. The complainant alleged that 2OOO broadcast advertisements during the Nawaa-E-Sarosh program at approximately 1.05 pm on 15 August The service Radio 2OOO has operated in the Sydney RA1 licence area since 16 September 1992 on a long-term community broadcasting licence and its current licence is due to expire on 14 September The community interest in respect of which the licence was allocated and last renewed is the Ethnic/General community in the geographic area of Sydney RA1. The Sydney RA1 licence area comprises the local government areas of: Ashfield, Auburn, Bankstown, Baulkham Hills, Blacktown, Botany Bay, Burwood, Camden, Campbelltown, Canterbury, Concord, Drummoyne, Fairfield, Holroyd, Hornsby, Hunter's Hill, Hurstville, Kogarah, Ku-ring-gai, Lane Cove, Leichhardt, Liverpool, Manly, Marrickville, Mosman, North Sydney, Parramatta, Penrith, Pittwater, Randwick, Rockdale, Ryde, South Sydney, Strathfield, Sutherland Shire, Sydney, Warringah, Waverley, Willoughby, Woollahra, Blue Mountains and Hawkesbury in the State of New South Wales. The program Nawaa-E-Sarosh is an Urdu language program broadcast by 2OOO on Saturday 15 August 2009 between 1.00 pm and 2.00 pm. Assessment The assessment is based on written submissions from the licensee and the complainant and copies of the broadcast provided by the licensee. A transcript of the program content was obtained by the ACMA from an accredited translator. Issue 1: Broadcasting advertisements Relevant provision of the Broadcasting Services Act 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 2

3 2 Interpretation certain things do not amount to broadcasting of advertisements (1) For the purposes of this Schedule (other than paragraphs 7(1)(a), 8(1)(a), 9(1)(a), 10(1)(a) and 11(1)(a)), a person is not taken to broadcast an advertisement if: (a) the person broadcasts matter of an advertising character as an accidental or incidental accompaniment to the broadcasting of other matter; and (b) the person does not receive payment or other valuable consideration for broadcasting the advertising matter. (2) For the purposes of this Schedule [ ] the broadcasting by a community broadcasting licensee of: (a) community information material or community promotional material; or (b) a sponsorship announcement that acknowledges financial support by a person of the licensee or of a program broadcast on the service provided under the licence, whether or not the announcement: (i) specifies the name and address of, and a description of the general nature of any business or undertaking carried on by the person; or (ii) promotes activities, events, products, services or programs of the person; or (c) material that announces or promotes the service provided under the licence, including material (whether by way of the announcement or promotion of activities, events, products, services or otherwise) that is likely to induce public support, whether financially or otherwise, or to make use of, the services provided under the licence; is not taken to be the broadcasting of an advertisement. Complainant s submission The complainant submitted that: For [the] last many years the [ ] Broadcaster has been breaching ACMA's sponsorship rules by NOT tagging all of his sponsorship announcements. Today again he did NOT tag all of his announcements between about 1.05 PM and 1.10 PM. Licensee s submissions On 31 August 2009 the licensee submitted that: Its logging equipment was off-line over the period 10 August to 22 August 2009; It therefore could not provide a copy of the broadcast from its audio log; and The producer of the Nawaa-E-Sarosh program had pre-recorded the program prior to broadcast. The licensee accordingly provided a copy of the pre-recorded program with its submission. 2OOO also provided the following list of financial sponsors of the service and the Nawaa-E- Sarosh program as at 15 August 2009: Moneygram 3

4 Homebush Halal Meat ASM International Freight Service Pty Ltd. Aussie Forex 2OOO submitted in relation to two of the announcements that: Most of the announcements are tagged except for two announcements which raised our concerns: a) A moneygram announcement sponsoring the station which all Broadcasters are advised to tag. The Urdu Broadcaster in a rush played the Hindi Moneygram sponsorship CD instead of the Urdu. He only realised after he had played it, that the Hindi program tagged their Moneygram sponsorship live not pre-recorded into the CD like the Urdu. b) The second announcement is for a translation and interpreting service offered by the broadcaster as a community service. The Broadcaster [A] is an accredited Translator and Interpreter in New South Wales. But [A] has assured me that he does not advertise for work because there is no need to. He has more work [ ] than he need (sic). But there is a community oriented nature that often required his assistance from time to time and that was the reason for the announcement. And he believes that for that reason there is no need for tagging. 2OOO also submitted a program log for 15 August However, the supplied program log is on a single sheet of handwritten paper (photocopied) that is illegible and of no use for the purpose of assessing the program material in this investigation. Finding The delegate finds that the licensee breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 by broadcasting two advertisements on 15 August 2009 between 1.00 pm and 2.00 pm. Reasons What is an advertisement? It is a condition of all community broadcasting licences that the licensee must not broadcast advertisements. The condition is in clause 9(1)(b) of Schedule 2 to the Act. The Macquarie Dictionary 4 th 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 4

5 broadcasters cannot broadcast some kinds of promotional material. The Act provides that certain promotional material is not taken to be an advertisement. 1 This includes: sponsorship announcements which acknowledge financial support by a sponsor of the licensee or a program broadcast on the community broadcasting service provided under licence; community information material or community promotional material; material that promotes the licensee s service; and material which is accidental or incidental to the broadcasting of other matter, and for which the licensee does not receive payment or other valuable consideration. This means that a promotional announcement that falls within one of these categories is not considered to be an advertisement. A community broadcaster may broadcast such an announcement without breaching the prohibition on advertising. Assessment of recording The ACMA obtained a translation of the program material provided by 2OOO from an accredited translation service. A review of the transcript indicated that, on two occasions, the licensee broadcast promotional material which did not fall within one of the categories listed above. This material is therefore an advertisement. Pre-recorded promotional announcements Moneygram Announcement The first announcement, for MoneyGram, was in the form of pre-recorded announcement, had a promotional character and was designed or calculated to draw public attention to the business mentioned. A transcript of the announcement is as follows: Advertisement (Male Voice): I want to send money; I do not want to spend it. Power will be in our hand through Money Gram. By paying our nominal charges, you will have considerable savings and your money will go a long way. Now, the power will be in your hands through Money Gram. You may check for a Money Gram agent in your neighbourhood by checking our website at This announcement did not fall within any of the categories of material which are not taken to be advertisements under the Act. This announcement, which appears to have been made on behalf of a financial sponsor of 2OOO, did not acknowledge the financial support of the sponsor of the licensee or a program broadcast by the licensee. The licensee s submission that the wrong language version of the announcement was broadcast is noted. However, the licensee should have appropriate policies and procedures in place to ensure such errors do not occur. Translation Service Announcement The second announcement, for translation services provided by [A], was in the form of prerecorded announcement, had a promotional character and was designed or calculated to draw public attention to the service offered by the person mentioned. The announcement states: 1 Clauses 2(1) and 2(2) of Schedule 2 to the Act. 5

6 Advertisement Announcer (Male): You may contact [A], a NAATI accredited Urdu translator, for any type of your translation. He will complete your translation in minimum time. His phone No is: [phone number], [phone number]. This announcement does not fall within any of the categories of material which are not taken to be advertisements under the Act. In relation to the licensee s submission that the announcement is a community service announcement, it is noted that there is nothing in the announcement to inform listeners that the translation service will be provided free-of-charge. Issue 2: Records of matter broadcast Relevant provision of the Broadcasting Services Act Records of matter broadcast (2) If a broadcaster broadcasts matter relating to a political subject or current affairs, being matter that is in the form of news, an address, a statement, a commentary or a discussion, the broadcaster must cause a record of the matter to be made in a form approved in writing by the ACMA. (3) Subject to this clause, a broadcaster must retain in his or her custody a record so made for a period of: (a) 6 weeks from the date on which the matter was broadcast; or (b) if a complaint has been made about the matter--for 60 days from the date on which the matter was broadcast; or for such longer period as the ACMA, in special circumstances, directs in writing. Licensee s submissions The ACMA asked 2OOO to provide a copy of the Nawaa-E-Sarosh program broadcast between 1.00 pm and 1.15 pm on Saturday, 15 August In response to the ACMA s request, 2OOO submitted that: As our request of the copy goes to the Engineer [ ] in the Technical Section, I was informed that our Logging Instrument was shut down by a technical fault for a short duration which unfortunately includes the 15 August 2009 (sic). I have included the Engineer s Report [ ] This report states, in part, that: This is to confirm that the digital logger used by the station to record all programs on air was out of order from the period 10 August to 22 August The problem was tracked down to a faulty UPS, resulting in the total loss of Audio recording during this period. This matter has been rectified as soon as I was made aware of the problem. 6

7 Finding The delegate finds that the licensee breached clause 5(2) of Schedule 2 to the Broadcasting Services Act 1992 by failing to keep a record of matter broadcast between 10 August and 22 August Reasons The ACMA viewed the 2OOO website on 6 October 2009, specifically the 2OOO program guide and the webpage titled News. Both pages indicate that 2OOO broadcast news programs each day. The News page states, in part: TIME AND DURATION OF NEWS SEGMENTS 5.00 AM 6.00 AM, MONDAY SUNDAY, BBC WORLD SERVICE 7.00 AM 7.05 AM, MONDAY SUNDAY, Independent News LOCAL 8.00 AM 8.30 AM, MONDAY FRIDAY, CRI ASIA/PACIFIC 11.30AM 11.35AM, MONDAY SUNDAY, Independent News LOCAL 2.30 PM 3.00 PM, MONDAY FRIDAY. ABC INTERNATION/LOCAL 5.00 PM 5.05 PM, MONDAY SUNDAY, Independent News LOCAL 11.00PM PM, MONDAY SUNDAY, Independent News LOCAL Accordingly, 2OOO has failed to keep a record of matters broadcast in relation to a political subject or current affairs, being matter that is in the form of news, between 10 August and 22 August Action taken by the licensee In response to the ACMA s preliminary investigation report, the licensee submitted that it had taken steps to address the compliance issues raised by the report: Pre-recorded Sponsorship announcements (Moneygram) implemented a new procedure to ensure that all sponsorship announcements are tagged; centralised the review of all pre-recorded promotional announcements received from sponsors to ensure they are appropriately tagged. In the past, program producers were responsible for ensuring announcements were properly tagged; and if announcements are not tagged, management will re-record the announcement and add the tag before distributing it to program producers for broadcast. Live to air announcements (Translation Service Announcement) conduct a review of all community service announcements (CSA) to ensure they are: [ ] in accord with Section of the Community Sponsorship Guidelines

8 The management will give special attention to community announcements of activities that involved a member of the Community Broadcasting Group [2OOO program presenters]. Further discussion of this type of announcement will be included as an agenda item in the program Convenors quarterly meeting scheduled for mid November Nawaa-E-Sarosh program the Nawaa-E-Sarosh program has been cancelled, with the last program to be broadcast on 31 October 2009; the airtime will be re-allocated to another program; and the Nawaa-E-Sarosh program convenor has been suspended. As a prerequisite to being allocated airtime in the future, the convenor will need to be retrained. Records of matter broadcast a new system has been introduced based on: [ ] the Engineer has provided the management with a Check List of things that should be checked daily. The outcome of the checking and inspection of the Tech room and equipment should be forwarded to the Engineer as soon as something which [is] not normal appears on the monitoring equipment. The ACMA considers these actions address the compliance issues raised by the investigation and will continue to monitor the licensee s performance in this regard. Decision I, Desa Bajic, A/g Manager Community Renewals and Investigations Section, Community Broadcasting Group, being the appropriate delegated officer of the Australian Communications and Media Authority, determine for the above reasons that Multicultural Community Radio Association Ltd., the licensee of 2OOO: Breached clause 9(1)(b) of Schedule 2 to the Broadcasting Services Act 1992 by broadcasting two advertisements on 15 August 2009 between 1.00 pm and 2.00 pm; and Breached clause 5(2) of Schedule 2 to the Broadcasting Services Act 1992 by failing to keep a record of matter broadcast between 10 August and 22 August Signed: Desa Bajic dated this 29th day of October