BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

Summary

Listing seven specific programmes which had started later than their advertised times

during the three previous evenings and on the basis that it was a breach of good taste

to be late for an appointment, P H E Bloomer complained to Television New Zealand

Ltd that the failure of the programmes to start on time was a breach of the

broadcasting standards requiring good taste and maintenance of the law.

Assessing the complaint under the good taste and decency standard and pointing to

some of the practicalities involved, TVNZ said it complied with the international

guideline to start programmes within five minutes of the advertised time except in

exceptional circumstances.

Dissatisfied first that TVNZ did not assess the complaint under the standard requiring

the maintenance of law and order, and secondly, that TVNZ declined to uphold the

complaint under the standard requiring good taste, P H E Bloomer referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

For the reasons below, the Authority declined to determine the complaint.

Decision

The members of the Authority have read the correspondence relating to this complaint

which is summarised in the Appendix. There is no tape to view and the complainant

and TVNZ accepted that some programmes did not start promptly at the advertised

times published in the programme listings. The complainant asked to present in

person some submissions on the legal questions involved. In view of the

comprehensiveness of the submissions received from P H E Bloomer, the Authority

has followed its usual practice and determined the complaint without a formal hearing.

P H E Bloomer complained to TVNZ that some specified programmes failed to

comply with the standard requiring good taste and decency and the standard requiring

compliance with the law as they did not start at the time advertised in the published

programme listings. The complainant referred specifically to resulting problems in

recording the full programme arising from the use of a G coder. The complainant has

not used an honorific at any point during the correspondence.

TVNZ accepted the complaint as one alleging a breach of s.4(1)(a) of the Broadcasting

Act 1989 which requires broadcasters to maintain standards consistent with the

observance of good taste and decency. Pointing out that, except in unusual

circumstances, it complied with the international practice to start a programme within

five minutes of the advertised time, it declined to uphold the complaint.

P H E Bloomer referred two matters to the Authority: the first was TVNZ's decision

to decline to uphold the complaint alleging a breach of good taste and decency, and the

second, TVNZ's decision to decline to consider the complaint as a breach of s.4(1)(b)

of the Act which requires broadcasters to maintain standards consistent with the

maintenance of law and order. He argued that legislation such as the Fair Trading Act

was contravened when programmes did not start at the advertised time.

The Authority's functions are set out in the Broadcasting Act 1989. The complaint

from P H E Bloomer was referred under s.8 which requires the Authority to accept

referrals of complaints made to the broadcaster under s.6(1)(a). Section 6(1)(a) reads:

6.  Formal complaints about programmes – (1) Subject to subsection (2) of this

section, it is the duty of every broadcaster-

(a) To receive and consider formal complaints about any programme

broadcast by it where the complaint constitutes, in respect of that

programme, an allegation that the broadcaster has failed to comply with

section 4 of this Act;

Section 4 sets out the applicable broadcasting standards and it is apparent from

s.6(1)(a) that the formal complaint procedure alleging a breach of broadcasting

standards applies to the contents of programmes which have been broadcast.

Nevertheless, while pointing out that the focus of the complaints process in the Act is

the content of programmes which are broadcast, the Authority acknowledges that

s.4(1) begins by referring to "programmes and their presentation" and the Television

Code of Broadcasting Practice, issued under s.4(1)(e) of the Act, refers to the

"preparation and the presentation" of programmes.

The Authority's task is to define these terms and, in doing so, it has taken into

account such provisions as s.4(1)(d) of the Act which requires balance in the

presentation of significant points of view and standard G19 of the Code which

prohibits editing which distorts the views expressed. Having interpreted the terms in

question in the context of the Act, the Authority has decided that the references to

"presentation" and "preparation" are included to ensure that complaints which are

appropriately referred are not confined strictly to the specific contents of a

programme which is actually broadcast. However, while these provisions give the

Authority jurisdiction to deal with some peripheral issues involved in the

"presentation" and "preparation" of programmes, it does not accept that these terms

bestow jurisdiction to deal with complaints which deal with matters beyond

broadcasting standards into such areas as programming schedules and the uses of

various technologies.

In other words, a complaint about the conditions under which a programme is

broadcast is generally outside the Authority's jurisdiction unless it is alleged that the

standards which were contravened infringe the standards which deal with the

programme's content and, in that context, raise a specific standards matter. For

example, the broadcast of an "AO" programme within the "G" time slot would raise a

standards matter. However, whether an "AO" programme was broadcast at 9.30pm

or 11.30pm with or without commercial breaks would be unlikely to bring

broadcasting standards into question. For an alleged breach of standards, a complaint

must focus on a content requirement and the current complaint did not do so.

In reaching this decision, the Authority notes that it is relying on, and confirming, the

practice it has laid down in previous decisions. (eg Decision No: 12/91).

The Authority sympathises with the complainant. It is no doubt frustrating to watch

a recording made by using a G coder and to miss the last few minutes just because the

programme has started – and finished – late. The possibility was raised in the

complaint that such a practice contravenes the Fair Trading Act and the complainant

may choose to pursue the matter elsewhere.

As noted above, the Authority's jurisdiction is set out in the Broadcasting Act and the

legislation provides that the Authority may accept a referral of a complaint dealing

with the preparation and presentation of programmes. However, in view of the other

provisions in the Act, it is apparent that such complaints must focus on the content

of the material which is broadcast: matters of commercial and contractual standards are

excluded from the Authority's jurisdiction.

For the foregoing reasons, under s.11(b) of the Broadcasting Act 1989, the

Authority declines to determine the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
16 March 1995

Appendix

P H E Bloomer's Complaint to Television New Zealand Ltd - 15 December 1994

P H E Bloomer of Napier complained to Television New Zealand Ltd that 90% of the

programmes started later than advertised. He listed seven specific programmes which

had been late in starting in the three previous days.

On the basis that it was a severe breach of good taste and decency to be consistently

late for an appointment, P H E Bloomer argued that failure to start programmes at the

advertised time breached the broadcasting standards requiring good taste and the

maintenance of law. They were also, the complainant alleged, breaches of the Fair

Trading Act and other legislation.

Noting that he used a G coder, P H E Bloomer argued:

... you have a duty under the aforesaid Acts to be skilful in ensuring that if I use

your code numbers then the G Code time should be consistent with the New

Zealand standard time. You have a duty to me in connection with the contract.

TVNZ's Response to the Formal Complaint - 9 January 1995

TVNZ assessed the complaint under s.4(1)(a) of the Broadcasting Act 1989 which

requires broadcasters to maintain standards consistent with the observance of good

taste and decency. TVNZ observed that there was some doubt whether P H E

Bloomer's concern fell within the formal complaint structure but, nevertheless, it had

decided to deal with the matter as a formal complaint.

It began:

It is noted that as a policy TVNZ follows the international practice of

advertising programmes as starting in the five minute time band which precedes

the actual time the programme starts. Thus, a programme advertised, for

example, at 7.30pm should start sometime between 7.30.00pm and 7.34.59pm.

This policy is followed worldwide because the nature of television programme

making (and film making) means that few programmes can be made to fit

precisely into 30 or 60 minute time periods without the content suffering in

some way. Further, the practice means that a programme will never start before

the advertised time.

In addition, TVNZ reported that in unusual situations - such as a live news event or

an unexpected extension to a sports programme - programmes could begin later than

five minutes after the advertised time. TVNZ trusted the complainant would

appreciate the valid reasons for these delays. Another cause for the disruption of

schedules, TVNZ noted, occurred when programmes expected from overseas were

scheduled but the exact length of their transmission was not known until well after the

listings had been published. TVNZ's Programme Standards Manager recorded:

The writer can advise that we are aware of a number of overseas and local

programmes which are in the schedule over the next few months, but for which

we do not yet have finite durations because the programmes have not been

completed.

Because it was a State-Owned Enterprise and required to operate commercially and to

return a profit, TVNZ said it could lose faith with commercial customers by omitting

commercial spots which had been paid for.

As very few programmes failed to start within five minutes of the advertised time and

while it expressed regret that the complainant was irritated by its scheduling, TVNZ

stated that it did not breach the statutory requirement for good taste and decency.

P H E Bloomer's Complaint to the Broadcasting Standards Authority - 20

January 1994

Before he received TVNZ's decision on the formal complaint, P H E Bloomer advised

the Authority that he was dissatisfied that TVNZ had not agreed to assess his

complaint under the standard in s.4(1)(b) of the Act which requires broadcasters to

adhere to standards which are consistent with the maintenance of law and order. He

wrote in a letter to the Authority dated 24 December:

It must be necessary in "the maintenance of law" for TV1 to comply with all

consumer protection legislation. That includes NOT to falsely advertise a

standard time to start a programme when TV1 consistently fails to start on time.

As start times are not consistently wrong by a specific amount I cannot adjust

my VCR so as to make my G Coder use that false time in order to get a full

programme.

P H E Bloomer reiterated this aspect when TVNZ's response was referred to the

Authority on 20 January, arguing:

Essentially my complaint is that New Zealand Acts must take precedence over

TVNZ's ideas of commercialism and overseas procedures.

A number of programmes broadcast since Christmas, the complainant commented, had

begun late and in two cases, had not been shown at all.

Dealing with TVNZ's response to the complaint, P H E Bloomer argued that as the

standards provision in the Act referred to the "presentation" of programmes, the issue

raised was clearly a standards matter. It was accepted that unusual news or sports

events could interrupt the schedule but, P H E Bloomer wrote, that had not occurred

with regard to the programmes complained about. As for TVNZ's commercial

obligations, P H E Bloomer argued:

TVNZ says it cannot get programmes on time as it is under contractual

obligations to advertisers. Not so, if law says standards require proper start

times that is law and advertisers have no legal claim on TVNZ for complying

with statutory laws.

Moreover, the complainant expressed the opinion that because of their number,

advertisements tended to be counter-productive.

P H E Bloomer repeated the arguments advanced in his complaint to TVNZ and added

a brief on the legal aspects which he believed to be involved and he asked for an

opportunity to expand on them before the Authority.

The brief supplied by P H E Bloomer summarised some of the provisions in the

Broadcasting Act and on the basis that a standard meant a degree of excellence, it

recorded:

Clearly TVNZ by participating in G Code technology requires TVNZ to use

that expertise with excellence. TVNZ has the technology for a quality service

enabling TVNZ to start its programmes on advertised times. No way is the

present TVNZ's service presented in a decent manner.

In view of G coding technology, the brief continued, it was now too late for TVNZ to

argue that the published programme starting times were only indicative. In view of

the requirements in the Consumers Guarantees Act 1993, P H E Bloomer said that

TVNZ failed to supply services with reasonable skill and care and, the complaint

explained:

This is one of my main complaints. Relying on advertised times neither hand

setting nor G Code settings enable me to see the end of programmes which

consistently run past settings. As TVNZ has advertised the time for the next

programme it is reasonable to expect the programme watched (intended to be

watched) to finish on time. TVNZ by stating the next time start has set the

reasonableness of the finish of my programme. Unfortunately, TVNZ does not

do this with reasonable skill and care.

TVNZ's Response to the Authority - 2 February 1995

Pointing to the simultaneous correspondence between P H E Bloomer, TVNZ and the

Authority, TVNZ noted the Authority's response to the complainant in which it

advised that time keeping was not an appropriate matter for a formal complaint about

broadcasting standards. TVNZ reported:

Despite serious misgiving about whether the starting times of programmes was a

proper subject to be dealt with under the statutory complaints process, TVNZ

has done its best to satisfy the complainant's concern that the late starting of

programmes is a breach of taste and decency.

Nevertheless, TVNZ added, it accepted that the Authority might decline to determine

the complaint.

As for the complaint itself, TVNZ repeated the points made in its letter to P H E

Bloomer about international guidelines and events which might disrupt a schedule.

With regard to its commercial responsibilities, TVNZ explained:

The complainant's comments about the commercial nature of TVNZ suggest

that he may be unaware of the terms of the State Owned Enterprises Act under

which TVNZ Limited is constituted. In case he is in any doubt we can state

that we are required to operate profitably in a commercial and competitive

marketplace. Like every branch of the media (including P H E Bloomer's local

newspapers in Napier and Hastings, and the local radio stations) profit is

achieved primarily by the sale of advertising space. TVNZ has a number of

strategic investments which also bring financial rewards - but advertising revenue

is the mainstay of the company's profit.

P H E Bloomer's Final Comment - 8 February 1995

Expressing concern that the broadcaster was not taking the complaint seriously, P H E

Bloomer said comments about overseas practices and profitability ignored TVNZ's

statutory obligations. Moreover, in view of the size of TVNZ's profit last year, the

complainant argued that the amount of advertising could be reduced, especially the

practice of interrupting broadcasts with a commercial break at the crucial point in a

programme.

P H E Bloomer pointed to the requirements of s.4(1)(a) and (b) of the Broadcasting

Act and maintained that failure to start a programme at the advertised time breached

the Fair Trading Act. Such failures frustrated the operation of the G code technology

which TVNZ supported.

Accepting that some sports events ran beyond the advertised times, P H E Bloomer

maintained that it was TVNZ's responsibility to ensure the following programmes

reverted to their advertised times promptly. As that was a matter of law not profit,

advertising had to be adjusted to achieve this outcome.