acma.gov.au web viewthe complainant alleged that the program host leon byner ‘interspersed...

Investigation Report 2553File No. ACMA2011/394

Licensee Festival City Broadcasters Pty Ltd

Station FIVEaa Adelaide

Type of Service Commercial Radio

Name of Program The Leon Byner Show

Dates of Broadcast

1, 12 and 19 October 2010

Date Finalised 23 August 2011

Finding Breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010 for the broadcast of The Leon Byner Show on 1 October 2010;

No breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2010 for the broadcasts of The Leon Byner Show on 12 and 19 October 2010; and

Breach of clauses 5.5 and 5.6 of the Commercial Radio Australia Codes of Practice and Guidelines 2010.

ACMA Investigation Report – The Leon Byner Show broadcast by 5AA Adelaide on 1, 12 and 19 October 2010.

The complaintOn 27 January 2011, the Australian Communications and Media Authority (ACMA) received a complaint concerning the content of the program, The Leon Byner Show broadcast on 1, 12 and 19 October 2010 by Festival City Broadcasters Pty Ltd, the licensee of FIVEaa Adelaide.1

The complainant alleged that the program host Leon Byner ‘interspersed advertisements’ for a fluoride removal company during commentary on water fluoridation with advertising.

The complainant was not satisfied with the response of the licensee and referred the matter to the ACMA for consideration.2

The complaint has been investigated in accordance with clause 3.1(a) [advertisements must not be presented as news programs or other programs] and clauses 5.5 and 5.6 [complaint handling] of the Commercial Radio Codes of Practice and Guidelines 2010 (the Codes).

The programThe Leon Byner Show is a talkback radio program that airs weekdays from 9 am to 1 pm. The program is described on 5AA’s website as:

South Australia’s leading current affairs program. Every day [Mr Byner] covers a variety of local, national and international issues. He chases the newsmakers down and gets the answers South Australian listeners are looking for... Every day, [Mr Byner’s] comments and opinions create the news agenda for the State.3

A transcript of each broadcast complained about is set out in the body of the report. In summary, the broadcasts can be described as:

1 October 2010 - commentary by Mr Byner about the fluoridation of water in Mt Gambier.

12 October 2010 - a live read for Waterways Products (Aust.) Pty Ltd, a fluoride removal company (Waterways), conducted by Mr Byner.

19 October 2010 - a statement ‘drafted and read by [Mr Byner]’ which the licensee states was ‘in response to some press in the Adelaide Advertiser and on ABC Radio on approximately 14 October 2010, inferring that [Mr Byner’s] opinion on fluoride in water is tainted by a commercial association with Waterways...’4

1 In its complaint to the ACMA, the complainant referred to broadcasts dated 5, 12 and 13 October 2010. The licensee has confirmed with the ACMA that the only discussion relevant to the complainant’s concern occurred on 1, 12 and 19 October 2011 – See licensee’s email to the ACMA dated 15 April 2011.

2 Sections 148 and 149 of the Broadcasting Services Act 1992 set out the ACMA’s jurisdiction in relation to complaints made under codes of practice.

3 http://www.google.com.au/url?sa=t&source=web&cd=2&ved=0CCEQFjAB&url=http%3A%2F%2Fwww.fxrs.com.au%2FFiles%2FDownload.aspx%3Ffile%3DLeon%2BByner%2BInformation.pdf&ei=E_ibTY-gNIe4vQOnj6neBg&usg=AFQjCNH3k_kosm2vJULRSHRLblufO_eVqQ&sig2=ZppyVP8fQuXl7IuBcJdLgA

4 Licensee letter to the ACMA dated 11 April 2011.


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http://www.google.com.au/url?sa=t&source=web&cd=2&ved=0CCEQFjAB&url=http%3A%2F%2Fwww.fxrs.com.au%2FFiles%2FDownload.aspx%3Ffile%3DLeon%2BByner%2BInformation.pdf&ei=E_ibTY-gNIe4vQOnj6neBg&usg=AFQjCNH3k_kosm2vJULRSHRLblufO_eVqQ&sig2=ZppyVP8fQuXl7IuBcJdLgA



AssessmentThe assessment is based on:

a recording of the programs broadcast on 1, 12 and 19 October 2010, provided by the licensee;

the complainant’s submissions;

the licensee’s submissions;

Other sources consulted are identified where relevant.

‘Ordinary, reasonable’ listener testIn assessing content against the Codes, the delegate considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.

Australian Courts have considered an ‘ordinary, reasonable’ listener or reader 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 affairs5.

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, inferences that may be drawn, and in the case of factual material, relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Codes.

Issue 1: Did the licensee broadcast advertisements that were presented as news programs or other programs?

Relevant Codes provisions

3.1 Advertisements broadcast by a licensee must:

(a) not be presented as news programs or other programs;

(b) comply with all other Codes of Practice so far as they are applicable.

Advertisement is defined by the Codes as:

“material broadcast a substantial purpose of which is to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action; and

5 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


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consideration has been provided by or on behalf of an organization or a supplier of the product or service to a licensee, or to a presenter, or an associate of a presenter for the broadcast of that material by the licensee.”

Complainant’s submissionsThe complainant submitted to the ACMA:

On several dates Mr Byner hosted and took a partisan position on the topic of the fluoridation of water supplies in South Australia. During his commentary and discussion with callers and guests, Mr Byner interspersed advertisements for a company called Waterways which markets equipment for the removal of fluoride from water. Whatever Mr Byner’s personal views may be, the inclusion of such advertising in what purports to be a discussion of a public issue must be questioned, as there is a financial incentive for him to take a particular view. As an employee of 5AA, Mr Byner is remunerated from the income generated by advertising. The response from the station that Mr Byner has no commercial arrangement with the company involved is no doubt correct, but the radio station does have a commercial arrangement with them. Mr Byner, as the station’s employee, is using public affairs radio to advance a view that supports the station’s advertisers and consequently his own income.

Licensee’s submissionsIn its submissions to the ACMA dated 11 March 2011, the licensee submitted:

[Mr Byner] does not have a commercial agreement for the promotion of the removal of fluoride from water and discusses this issue as a matter of public concern, hopefully presenting both sides of the argument fairly.

From what we understand, [Mr Byner] has discussed this issue over a long period of time, but at around October 2010 the issue became topical once again (as a result of the proposed introduction of fluoride into the water supply in Mt Gambier). We assume that the complainant’s concerns are in relation to that period. ... During October 2010, [Mr Byner] conducted interviews with politicians responsible for water in SA as well as with SA water regarding the fluoride issue. Whilst he has always (for many years, I understand) been unsupportive of fluoridation by SA Water, he has conducted interviews with representatives from both sides of the debate and looked at factual and scientific information which supports multiple points of view on this issue (not just his own).

In its submissions to the ACMA dated 11 April 2011, the licensee submitted:

[Mr Byner] has been discussing the issue of fluoridation of water in South Australia for a long time. According to his producer, this topic has come up in discussion on his program now and then for the past ten years. [Mr Byner] has always maintained an opinion that, whilst putting fluoride in water may improve dental health, it is not necessarily a solution to related problems and potentially creates new problems for the community. ..

Waterways has been a client of FIVEaa since approximately July 2010 and has conducted advertising in the form of spots (conventional, pre-recorded ads) and live reads from July 2010 to December 2011. Live reads were conducted by FIVEaa announcers [Mr Byner] and Amanda


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Blair, for which they were compensated by FIVEaa in accordance with their relevant employment agreements.

[...]

Waterways are not currently advertising on FIVEaa.

It is important to note that the majority of advertising for Waterways is in respect of its products other than the reverse osmosis system (which removes fluoride from water). Waterways also promoted its water purification system on FIVEaa (which, as we understand it, does not specifically remove fluoride from water).

We also note that other water purification companies advertise on FIVEaa, including during [Mr Byner’s] program – [broadcast dated 1 October 2010] for example, includes an advertisement for competing water purification products (“Puratrap”).

[...]

As we made clear to the complainant in our response to him dated 25 November 2010, [Mr Byner] does not have any commercial agreement with Waterways and we are assured by [Mr Byner] that he has never received compensation (as defined by ACMA) from Waterways for any advertising or promotion of Waterways products. He does not own a Waterways product.

Waterways is a client of FIVEaa. As part its agreement with FIVEaa, some of its announcers (Leon [Mr Byner] included) conduct live reads for the client (previously in the form as set out in [the broadcast dated 12 October 2010]). These live reads are not conducted during commentary or discussion by Leon [Mr Byner] about fluoride in water.

[...]

The licensee’s submissions against clause 3.1(a) of the Codes specific to the three separate broadcasts are set out beneath each broadcast’s transcript below.

In response to the ACMA’s request for information about its commercial arrangement with Waterways, and a schedule of advertisements broadcast by the licensee on days surrounding the date of the broadcast, the licensee has provided the ACMA with the following confidential information.

o Promotional scripts for Waterways;

o An email from Waterways to Mr Byner dated 1 October 2010;

o On-Air Schedule – Broadcast Contract between Festival City Broadcasters Pty Limited and Waterways Products (Aust.) Pty Ltd for the period 1 October 2010 to 19 October 2010;

o Business and Budget Plan 2010 – 2011 (October – April) including Terms and Conditions.

FindingThe delegate finds that the licensee of 5AA:

breached clause 3.1(a) of the Codes in relation to the broadcast dated 1 October 2010; and

did not breach clause 3.1(a) of the Codes in relation to the broadcasts dated 12 and 19 October 2010.


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ReasonsIn assessing each broadcast against 3.1(a) of the Codes, the delegate must consider:

whether the broadcast was an advertisement; and, if so, whether it was presented as a news program or other program.

In deciding whether the material broadcast constituted an advertisement, the delegate must determine:

1. whether a substantial purpose of the material was to promote a product or service, and

2. whether consideration was provided by or on behalf of the organisation or a supplier of the product or service to the licensee, or to the presenter, or an associate of the presenter for the broadcast of that material by the licensee.

Broadcast 1 - 1 October 2010The broadcast dated 1 October 2010 was as follows:

There has been mega reaction to our discussion about the segment today which talked about the [fluoridisation] of our water supply and the fact that it’s calcium fluoride which is a positive. But, we’re not getting that, we’re getting sodium fluoride. You can go to any pharmacopoeia and look that up and you will see the toxicity of it. But, what I told you earlier today, in case you missed it, was that our water supply is, basically what they put in there is not a pharmaceutical grade product but a toxic waste product of the aluminium and phosphate product industry that is known as phosphoric acid. There are many websites you can go to but the American publication, which has certainly been peer reviewed, so nobody can argue that it’s not scientific, has, this is the American Medical Journal talks about the fluoridisation of the water not being a good thing and they have connected the fluoride to a whole lot of stuff, lower IQ in infants, hyperactivity, attention deficit, bone cancer, aching muscles, joints, arthritis, all that kind of stuff. What we have here is a notice from [X] Waterman at Waterways and they are a good company. I know [X] well and used to work with her years ago. She says we have been inundated with phone calls today in relation to your discussions this morning about fluoride in our water. You can tell your listeners that we have a 4 star reverse osmosis that removes fluoride completely usually $905 installed, but, we are going to discount the product to $635 installed. Up to you guys. So, if you want to mention it... Well, [X], I am, because a lot of people... well, you will make of the misinformation of the fluoridisation of our water supply what you will. I’m just giving you some information that comes from a science base where you can make an informed choice about what water you drink. I’m not going to tell whether you should or you shouldn’t, I’m just giving you the information. We will approach SA Health to see what they will tell us but I’m not expecting much from them for reasons that I’ve already explained. But, if you want to take this into your own hands, it might be a good option to call Waterways and ask them about their $630 installation of the product that gets rid of the fluoridisation, or the sodium fluoride, which happens to be in our water, which many people say, is not good.

The licensee submitted in relation to this broadcast:

In [the broadcast dated 1 October 2010] [Mr Byner] makes a reference to an email from Waterways about its reverse osmosis product. It is important to note that [Mr Byner] was not compensated, nor did he receive any consideration from either Waterways or FIVEaa for this. He received an email during his show (all of our announcers have access to their emails whilst


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broadcast and it is becoming a popular way for listeners to interact with announcers) from a staff member at Waterways, which he made reference to.

This was not a live read and [Mr Byner] did not receive any compensation (directly or indirectly) for mentioning Waterways. The email was not prompted, nor was [Mr Byner] required to make reference to it on air. [Mr Byner] makes it very clear that it is up to listeners to make up their own minds about the topic and whether or not a product such as Waterways is right for them. This is obviously not an advertisement, and is therefore not in breach of Code 3.1(a).

Did the broadcast constitute an advertisement?The first question the delegate must consider is whether a substantial purpose of the material was to promote a product or service. The delegate makes the following observations of the content broadcast: The nature of the discussion in the broadcast was current affairs; The broadcast opened with a reference to an earlier broadcast in which the addition of

fluoride to the water supply in Mt Gambier was discussed; The broadcast then discussed issues that have been raised in relation to the

fluoridisation of water, such as the medical ramifications there may be from drinking fluoridated water. The discussion centred on scientific research into the issue and cited a general reference to medical journals that contained opinions that fluoridisation of water supply is undesirable;

The presenter read an email which referred to Waterways and their product, and the availability for sale, and price, of the product;

The surrounding commentary of the email also involved several references to Waterways, its employees and its product and the apparent benefits of the product; and

The broadcast closed with an endorsement of Waterways which included reference to the employee of Waterways who emailed Mr Byner during the broadcast. In his closing comments, Mr Byner provided contact details for Waterways and details of a discount being offered to listeners of the licensee.

The delegate is of the view that the broadcast contained content that satisfies the first tier of the definition of ‘advertisement’ set out above. That is, a substantial purpose of this content was ‘to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action’. The delegate also notes that the content of the broadcast dated 1 October was very similar to the live –read ad script with the title, ‘Reverse osmosis, Key No WWay-1810-live’, provided to the ACMA by the licensee in response to its request for information about the licensee’s commercial arrangement with Waterways, and which was read on 12 October 2010 (see discussion below). The script refers to the public reaction to the fluoride levels in drinking water, and states “When medical and scientific journals are describing the fluoride we receive (sodium fluoride) as toxic, it’s important that you question what you’re drinking.”The next question for the delegate is whether the licensee, the presenter, or an associate of the presenter, received consideration from Waterways for the promotion of the product. The licensee has submitted that the material of concern did not amount to an ‘advertisement’, in effect, because Mr Byner did not receive any payment for his endorsement of Waterways’ products. The licensee has also submitted that “neither [Mr Byner] nor FIVEaa were compensated for this...”6

6 Letter from the licensee to the ACMA dated 18 May 2011.


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From the information provided by the licensee regarding its contractual agreement with Waterways, and the schedule of paid advertisements in that agreement, the delegate is satisfied that, in consideration for the payment of a monthly fee, the licensee regularly promoted Waterways products in the period surrounding 1 October 2010 using recorded advertisements and live reads. The terms and conditions of the arrangement between the licensee and Waterways indicate that:

Each producer in conjunction with the Program Director decides program content such as interviews and editorials’ and ‘clients acknowledge that this proposal contains a concept or idea...details (such as dates, venues and named Talent) as set out in the proposal...are indicative only, provided as an example and are subject to change...Acceptance of this proposal is made not withstanding any changes to details and any changes will not constitute grounds for termination and/or compensation of any kind...

As payment was made on a monthly basis, covering 1 October 2010 and there was flexibility in the nature of the promotional broadcasts provided by the licensee, the delegate is of the view that the broadcast promoting Waterways products on that date occurred within the terms of the overarching contractual agreement between the licensee and Waterways. Accordingly, consideration was provided to the licensee (it did not need to be directly provided to Mr Byner) in return for the promotional announcement of the Waterways Osmosis product made by Mr Byner during Broadcast 1 on 1 October 2010.On this basis, the delegate finds that the broadcast on 1 October 2010 constituted an advertisement under the Codes.

Was the advertisement presented as a news program or other program? The delegate has assessed the broadcast’s contents in relation to placement, style and tone, and notes that: The endorsement for Waterways is placed within a broader discussion about water

fluoridisation of a current affairs nature relating to a local issue for listeners in South Australia, and not in an identifiable commercial break;

The tone and language used by Mr Byner was consistent with general discussion, and the topic of fluoridisation in water segued to reading the email from Waterways;

The preceding discussion to the endorsement of Waterways related to, and made reference to, a broader discussion about the merits of water fluoridisation; and

Even though there is a clear endorsement of Waterways, the predominant emphasis of the broadcast was on the subject matter of discussion, and not on the product itself. Because of this, and because the nature of the product was so intrinsically related to the topic of discussion, the broadcast, on the whole, amounted to a current affairs program.

The delegate is of the view that the broadcast was being presented as a current affairs program, and not as an advertisement.

The licensee presented an advertisement for a Waterways product as other program material, and accordingly, breached clause 3.1(a) of the Codes for the broadcast dated 1 October 2010.

Response from licensee to preliminary finding:The licensee submitted to the ACMA in relation to the preliminary finding of a breach of clause 3.1(a) of the Codes regarding the 1 October broadcast:

[W]e... disagree with the ACMA’s finding that any part of this broadcast constituted an advertisement for the purposes of Code 3.1(a), for two reasons:

1. because it was not a substantial purpose of the broadcast to draw public attention to, or promote Waterways, or its products; and


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2. because there was no consideration provided by Waterways to FIVEaa, Mr Byner or any other relevant party in respect of the broadcast.

The ACMA in its Report ... acknowledges itself that the “predominant emphasis” of the broadcast was not on Waterways or its products.

[...]

The ACMA has determined that flexibility in Waterways’ agreement with FIVEaa on the basis of the terms and conditions attached to its original proposal ... We strongly disagree that the ACMA can infer any flexibility in the station’s agreement with Waterways in respect of the 1 October Broadcast.

[...]

The ACMA included only the first sentence of this condition in its quote in the Report. This condition, when read in its entirety, is relevant to Code 3.1(a).

[...]

This condition makes it very clear to clients that sales staff do not control editorial and other programming content on FIVEaa, and cannot influence that content, and that advertisements are very different from editorial and other content. This condition does not give flexibility to anyone (producers, sales staff or program directors) to allow promotional content other than the advertisements for which a client is paying to be broadcast as a ‘value-add’ for clients, without any such content being clearly set out to the client in the proposal or in their booking forms.

[...]

[The condition set out in FIVEaa’s confidential client proposal referred to in the report] relates to unforeseen changes to client advertisements and live reads relating to factors such as a particular announcer being unavailable ... or the date/time of the broadcast of an advertisement being changed because of breaking news, last minute scheduling change or other technical reasons. It does not extend to the inclusion of additional advertisements, other client promotional arrangements of the like. If additional promotional activities were undertaken, this would clearly be shown on the relevant booking form and paid for by the client.

[...]

FIVEaa... disagrees with the ACMA’s finding that the agreements in place with Waterways allowed for sufficient flexibility to allow for consideration in exchange for the mention of Waterways in Mr Byner’s broadcast on 1 October 2010...

... [W]e are very concerned that this will potentially set a dangerous precedent for licensees.

Based on the ACMA’s rationale, it would potentially follow that any on-air involvement by a current paying client of FIVEaa could potentially constitute a breach of Code 3.1(a) on the basis that the fee being paid by that client to FIVEaa for advertising, also potentially compensates or constitutes consideration for that on-air involvement which is very separate from any advertising undertaken by that client.


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We believe that it is necessary for the ACMA, in its final investigation report, to include some kind of clarification around this issue or differentiate the broadcast of 1 October 2010 in some way so as not to capture general, ad hoc on-air involvements by clients with no bearing on their advertising arrangements with the station.

[...]

ConclusionThe delegate has considered the licensee’s submissions on the preliminary report in relation to the nature of the broadcast, including the references to its predominant emphasis and substantial purpose. The delegate remains of the view that the broadcast on the whole amounted to a current affairs program as it was framed as a discussion about a current social, economic or political issue and this was its predominant purpose. But at the same time, it included references to the availability for sale, and the price of products and a clear endorsement of an organisation, similar to a current live-read script, the substantial purpose of which was to draw public attention to, or promote, Waterways or its products.

The delegate has considered the submissions about the contractual terms of the agreement and accepts that the licensee’s client does not have any editorial role in programming. However, the delegate considers that the promotion that occurred during the current affairs broadcast was consistent with the services to be provided by the licensee in consideration for the payment of advertising fees. Regardless of the level of flexibility in the arrangements for provision of those services, it fell within the overarching contractual arrangement between the licensee and Waterways. In addition, the delegate considers that the endorsement of Waterways products within the context of the program served to strengthen the contractual relationship between FIVEaa and Waterways despite the licensee’s assertion that no particular compensation was paid for the broadcast.

The licensee has sought clarification concerning any on-air involvement by a current fee paying client. The ACMA will consider each such case on its particular facts and circumstances. In this case, the delegate does not consider that the broadcast was in the nature of ‘general, ad hoc on-air involvements by clients with no bearing on their advertising arrangements with the station’. The broadcast content amounted to a clear and direct promotion of a specific product provided by the licensee’s client, and was not just limited to a general discussion, for example, a comment on prices of products generally.

Accordingly, the delegate upholds its preliminary findings in relation to the broadcast dated 1 October 2010.


One of the hot topics we have been discussing lately is fluoride levels in drinking water. The public reaction to this, is as you have seen, been extraordinary. Waterways is a water purification company that has been installing water purifiers, that has not only met world standards, they set the standards. If you are concerned about the fluoridisation of our water supply, speak to Waterways about a four stage reverse osmosis system. It’s a specialised system that removes all fluoride from your drinking water. Now, normally it’s $905 for it to be installed, but Waterways are now offering it at a special price, $735. Act now. 8186 0189. 8186 0189. When medical and


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scientific journals are describing the sodium fluoride as toxic, it’s important that you question what you are drinking. For fluoride free drinking water, call Waterways. 8186 0189.


The live read in [the broadcast dated 12 October 2010] is clearly an advertisement. It sets out some background to the fluoridisation issue in SA, highlights the client and their product, discusses price then provides contact details of the client.

This live read is made during commercial airtime, in between two other advertisements.

We strongly believe that this piece of audio is both distinguishable by a reasonable listener as an advertisement, not commentary, news, or other programming and was not presented as anything other than an advertisement by FIVEaa.

Did the broadcast constitute an advertisement?The licensee does not dispute that the material broadcast constituted an advertisement. That is, it directly promoted a service or product, and the licensee received consideration from Waterways in the form of monetary compensation for the promotion, which was directly stipulated in its contractual agreement.

Was the advertisement presented as a news program or other program material? The delegate has assessed the broadcast’s contents in relation to placement, style and tone, and notes that:

The broadcast was directly preceded and followed by a bracket of pre-recorded advertising;

The broadcast featured during an advertisement break from the usual format of the Leon Byner Show;7

The tone was controlled and appeared to be scripted, without interruption. The words that were broadcast are identical to a script for a Waterways live read provided

to the ACMA by the licensee; Waterways was specifically mentioned four times in the minute long segment.

The ACMA considers that the abovementioned elements would enable the ordinary reasonable listener to understand that the broadcast was presented as an advertisement for Waterways, and not as a news program or other program. Accordingly, the licensee did not breach clause 3.1(a) of the Codes for the broadcast dated 12 October 2010.


The fluoridisation of our water supply has always been controversial. We have been drinking fluoridated water for well over 40 years. The people of Mt Gambier have just had fluoride added to their water against a public backlash. There was no apparent consultation, instead pamphlets telling the public how it would be good for their health. I also informed you that there is a discussion to include sodium fluoride in bottled water. That’s as yet undecided. A former Minister in the Whitlam government, Doug Everyham has written to John Hill asking him to... I’ve told you about it a few times. The European Court of Justice has ruled that the fluoridisation of a water

7 The ACMA has reviewed the preceding and following material and confirms that Broadcast 2 was placed within an identifiable advertisement break.


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supply is undesirable, citing a medical belief that each dose on a mass fluoridisation will depend on the amount of water consumed, not how many parts per million are added. Now, I have the view that informed choice must be the number one thing here and by the way, that is, not just knowing fluoride is in the water, but what ramifications there might be from drinking it, and should you wish not to drink fluoridated water, what can you do? The state government health media unit, instead of engaging in the debate where peer reviewed medical journals questioning the adding of fluoride, instead, are much more interested in the fact that on 5AA I was reading an advertisement for a reverse osmosis system which removes fluoride, which I have been reading on air for some time prior to this debate heating up in the last few weeks. Now, I have no commercial arrangement with the company and SA Health. My advertisements for this company are clearly distinguishable from interviews and other content which I broadcast regarding this issue. Very early on in the debate, I was very clear that I do not buy the conspiracy theories that have abounded. But, I’m not ignoring good medical people who might happen to disagree with the state’s view on fluoride. SA Health might be better employed sticking to science rather than try to sleaze up some kind of moral outrage that a commercial radio station runs advertising. Now, this government has used taxpayer’s money, your money and its massive resources to provide transcripts to opposition media, in the hope of stirring up a red herring. It’s a sad waste of resources when there’s no money to hire nursing staff.


[The broadcast dated 19 October 2010] is a statement made by [Mr Byner] in response to an Article published in The Advertiser on 14 October 2010 and subsequent discussion on ABC Radio, in which it is inferred that there is some connection between [Mr Byner] commentary on Fluoridation and his involvement with Waterways. The article mistakenly assumes that [Mr Byner] has a commercial agreement with Waterways, which he does not. The article states (quote from a Waterways salesperson) that “every time [Mr Byner] gets on about it we sell a few systems” however, does not specify that this is in relation to advertising, not commentary. From [Mr Byner] and FIVEaa’s perspective, the fact that the client is selling products as a result of our advertising is a good thing.

The statement clarifies [Mr Byner’s] association with Waterways and states his position both in relation to fluoridation of water and his association (or lack thereof) with Waterways.

This is not a live read or other advertisement. It is commentary from [Mr Byner’s] on the issue and a clarification from him with regard to the issue. [Mr Byner] did not receive any compensation from Waterways for this, nor does he use the name Waterways to promote or endorse their products.

Did broadcast constitute an advertisement?

The delegate does not consider this broadcast amounted to an advertisement for the purposes of clause 3.1(a) of the Codes. The broadcast was a scripted commentary read by Mr Byner addressing whether any commercial relationship existed between himself and Waterways, following a newspaper article making inferences that it does. Mr Byner did not promote or endorse Waterways services or products in this broadcast.

Accordingly, it is not necessary to consider whether the broadcast was presented as a news program or other program, and the licensee did not breach clause 3.1(a) for the broadcast dated 19 October 2010.


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Issue 2: Complaint handling

Relevant Codes provisionsAdvice in Writing

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

5.6 The response must inform the complainant that he or she has the right to refer the complaint to the ACMA if the complainant is not satisfied with the response of the licensee.

The complainant’s initial complaint to the station was as follows:

[...]I am writing to make a formal complaint regarding the intermingling of on-air advertising with what is purported to be public-affairs comment by [Mr Byner] in your morning programme. On several occasions Mr Byner has followed an extensive and strong denunciation of the practice of fluoridation of the water supply, with advertising for a company whose products purport to remove fluoride from drinking water. It is not at all unreasonable to assume that the comments are being made to assist in the sales for that company, in other words they are advertising. Yet at no time is it made clear that these comments are part of the advertisement and without that being expressly stated, the listener is misled to believe that they are the opinions of Mr Byner. Since your company, and indirectly, Mr Byner, are paid for this advertising, this amounts to ‘cash for comment’ and is in breach of the “Commercial Radio Australia, Codes of Practice and Guidelines” Section 3.1a

3.1 Advertisements broadcast by a licensee must: (a) not be presented as news programs or other programs.

Whatever Mr Byner’s views on this topic may be, combining them with advertisements is not acceptable and is a misuse of the privileged position he holds in forming public opinion. ...

The licensee’s response to the complainant’s initial complaint was as follows:

Thank you for your letter of 1st November regarding the Leon Byner Show and comments regarding fluoridation of the water supply.

[Mr Byner] does not have a commercial agreement for the promotion of the removal of fluoride from water and discusses this issue as a matter of public concern, hopefully presenting both sides of the argument fairly.

Once again, thank you for writing to us – we do value our interaction with our listeners and both positive and negative comments. [...]

Licensee’s submissionThe licensee submitted in relation to clause 5.5 of the Codes:

As you can see from the date of [the complainant’s] original complaint and our response, we did respond within 30 days.

Whilst our response was briefer than our usual complaint responses, and (as you will see from the many other complaint responses ACMA have seen from DMG over the years) ideally we would


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have preferred to provide more background information and analysis of the Codes to [the complainant] (which, as set out in my previous email to you, we fully acknowledge was the result of a staffing issue at our end which we have now rectified), I don’t believe we are in breach of code 5.5 with regard to the substantiveness of our response. The key piece of information regarding Mr Lock’s concerns was that [Mr Byner] does not have a commercial agreement with Waterways Products Pty Ltd, which was clearly conveyed to [the complainant] in our letter. It’s not the way we generally respond to complaints, but I do think it addressed the main issue and was certainly more than just a ‘holding’ response to [the complainant]. [The complainant] concerns were definitely conscientiously considered by FIVEaa (I am aware that a meeting was held between the Program Directors, General Manager and production staff to discuss it, audio was reviewed and [Mr Byner] was interviewed prior to the response being sent).

…

Whilst not a good way to learn, I have been working closely with our Adelaide Team since we received this complaint and done one-on-one training with staff who deal with complaints (both the GM and his assistant in Adelaide are new to their positions) and I’m confident that the procedures and processes that we’ve put in place will ensure this kind of mistake doesn’t happen in future.

The licensee submitted in relation to clause 5.6 of the Codes:

With regard to clause 5.6 of the Commercial Radio Codes of Practice, we fully acknowledge that this response does not contain a provision advising the complainant that they may refer their complaint to ACMA in the event that they are not satisfied with our response. The reason for this (whilst not an excuse) is that we have recently changed staff in our Adelaide General Manager’s office. Whilst all staff undergo compliance training upon induction, the relevant staff member responsible for administering complaints to the Station was keen to ensure a response was sent quickly and efficiently and overlooked the ACMA notification.

This is certainly not common practice at DMG, nor is it acceptable practice. Since receiving this complaint, I have personally travelled to Adelaide to spend several hours with the General Manager and his staff who receive complaints (admin staff/programs directors etc) to reiterate a) what is a “complaint” for the purposes of the Codes; b) how complaints need to be handled and what we expect from staff in doing this.

I will monitor all complaints out of Adelaide closely over the next few months (and review responses) in order to ensure that this problem does not happen again.

FindingThe licensee breached clauses 5.5 and 5.6 of the Codes.

Reasons

Clause 5.5

The nature of the complaints handling provisions is such that the licensee is required to respond substantively to code complaints. A complaint under the Codes is a complaint relating to an issue of a code provision. Accordingly, the delegate assessed the licensee’s response insofar as it addressed the aspects of the complaints that were relevant to the Codes, specifically, clause 3.1(a).

Clause 5.5 of the Codes requires that a licensee:

1. conscientiously consider a written complaint; and

2. use its best endeavours to respond substantively within 30 days of receipt of the complaint.

As the Codes do not define ‘conscientiously’ and ‘substantive’ and the delegate has adopted the ordinary, English language meaning as contained in the Macquarie English Dictionary (5th Edition):


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Substantive 4. belonging to the real nature or essential part of a thing; essential

Conscientious controlled by or done according to conscience; scrupulous.

In this matter the complainant stated:

Since your company, and indirectly, Mr Byner, are paid for this advertising, this amounts to ‘cash for comment’ and is in breach of the “Commercial Radio Australia, Codes of Practice and Guidelines” Section 3.1a.

In addition to raising the issue of ‘cash for comment’ the complainant clearly asserted a breach of the Codes and particularised the relevant code. The delegate considers that this required a substantive response.

While the delegate is satisfied that the response did address the ‘cash for comment’ aspect of the complaint, the delegate is of the view that the licensee’s response did not address the substance or real nature of the complainant’s concerns insofar as they related to the Codes. It would appear from the response provided to the complainant that the licensee did not turn its mind to the specific provisions of the Codes raised by the complaint and the program’s compliance with those provisions. Specifically for each broadcast, the licensee’s response should have addressed whether the broadcast was an advertisement and if so, whether it was presented as part of the news or other program.

On balance, the response provided was not substantive, in that, it did not address the specific requirements of the relevant provision alleged to have been breached and it did not demonstrate that the licensee conscientiously considered the code complaint raised by the complainant.

Accordingly, the licensee breached its obligations under clause 5.5 of the Codes.

Clause 5.6

The licensee has conceded that it failed to advise the complainant that the matter could be referred to the ACMA if it was not satisfied with the licensee’s response:

We fully acknowledge that this response does not contain a provision advising the complainant that they may refer their complaint to ACMA in the event that they are not satisfied with our response.

Accordingly, the licensee breached its obligations under clause 5.6 of the Codes.

Response from licensee to preliminary finding:The licensee submitted to the ACMA in relation to the preliminary finding of a breach of clause 5.5 and 5.6 of the Codes:

... We acknowledge and agree with the ACMA’s findings in respect of these Codes. ...

As previously submitted to the ACMA by FIVEaa, an inexperienced staff member, in an attempt to be helpful and efficient, responded to Mr Lock’s concerns without regard to the requirements of Codes 5.5 and 5.6. This mistake did not come to our attention until we were contacted by the ACMA. If we had become aware of this sooner, we would have contacted Mr Lock, apologised and prepared a subsequent detailed complaint response for him (as we do for all formal complaints received by FIVEaa).

All staff at FIVEaa receive annual compliance training, which includes processes and procedures for dealing with complaints, and the requirements of Codes 5.5 and 5.6.


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At the time of [the] complaint, both the General Manager and his assistant were new to their roles, were in the process of moving offices and were familiarizing themselves with both the procedures and process around the running of the station.

We apologize for this oversight. It is not acceptable to FIVEaa and it is certainly not common practice or something we condone or accept.

[...]


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acma.gov.au web viewthe complainant alleged that the program host leon byner ‘interspersed...

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