A  commercial TV Christmas carol:

Deck the halls with crates of Bolly,

ACMA’s given us lots more lolly

That’ll save us from our folly …

The Bolly was out in TV land over the weekend, hosannas were sung to the wise men and women of ACMA, the media regulator that had laboured long and hard with Free TV Australia to bring forth a new code of practice for commercial TV, which will enable the industry to make more money over the next three years.

For viewers, there will be zilch, except if you complain, the networks have come into the 20th century and will accept emails. Some trade-off.

The new code will give the commercial free-to-air networks (including SBS), the ability to raise hundreds of millions of dollars a year in extra ad revenues for each of the three years starting January 1, 2010.

Seeing total industry revenues are running at a depressed amount of about $3.2 billion a year, the changes on ad content and promotional material could eventually generate an extra 5-10% of revenue a year.

The networks have had a big win, especially on the extra ads for their new digital channels. which will develop into low-cost gold mines.

Yes, it was the Friday before Christmas and the commercial TV sector got a great big pressie or three wrapped in the usual gobbledygook of the code. Here’s the industry’s explanation, from Free TV Australia.

The reality is different for viewers.

In exchange for handling complaints electronically, commercial FTA TV has received two extra minutes an hour of advertising time on their expanding digital channels (and the ability to make up for ads not broadcast earlier), an extra minute of advertising in prime time in political campaigns will be allowed (great for 2010). Seven, Ten, Nine and SBS will all introduce their third digital (advertising allowed) channels next year, on top of their existing channels.

But equally as lucrative a coup was winning the right to have “exemptions from time limits on non-program matter apply in relation to promotions that are 10 seconds or shorter and other material, including program listings and station IDs, which are 30 seconds or shorter.”

That means all those station promos (such as the one Seven had sponsored by Cadbury during ratings), and all those spots telling us that this program is being brought to us by VB, Ford, Coles, etc, won’t count as advertising even though they have the advertising logos in shot.

That will be worth millions of dollars a year because they will apply across all hours of the day on all channels. It could effectively boost advertising by a minute or more in prime time. But there was no hourly or frequency limits in the new code placed on the sponsored station promos or the 30-second sponsors’ boards for every program. So it could very well be open slather.

This will apply in every major time zone. There are no real exemptions, so we can except to see those Cadbury-like promos for Seven everywhere from 2010 onwards, and a multitude of sponsors’ segments in every program, no matter the time of day.

All this for getting the networks to agree to simplify and streamline the complaints process and move it from paper to the electronic world of email.

And then there’s the nice little earner for next year (and in NSW in February, and March 2011) of an extra minute in every prime-time hour for political ads.

They (or rather taxpayers) pay top dollar for those ads, which are spots and charged the full casual rate. That will be millions of dollars more for the industry, all pure profit.

A rain of prospective gold for the networks, and all arranged in the dark, with very little light or transparency.

In fact the whole process was carried out in the dark, no public discussion, just a deal between the regulator and Free TV Australia. Public submissions were called for and received, but that’s all we know happened to them.

Free TV Australia never told us how many submissions were received, but it boasted of its campaign to attract them:

Free TV Australia also distributed a press release to the parliamentary press gallery, the metropolitan and regional press, radio and television. Free TV distributed 537 copies of the draft code and the accompanying explanatory note to those organisations and members of the public who had expressed an interest in the code. The public comment period was 6 weeks. Formal extensions of up to two weeks were allowed and submissions were accepted up to 9 October 2009.

Well, wasn’t this right generous of the free TV industry (free?)? Where were the submissions made to Free TV Australia? At least the odd Senate inquiry into TV (such as the one on swearing) released its submissions.

Not one report over the weekend in the media worried about this lack of transparency (The Sydney Snoring Herald missed the story).

That was the whole point of the release on a Friday the week before Christmas when newspapers are cutting back to save costs after a miserable year.

But thanks to ACMA, we did find something significant about the submissions, their number: “Over 1500 submissions were received by Free TV,” ACMA said in its release. 1500! Where are they?

Guess what, Free TV Australia still hasn’t said on the record, how many submissions were received. Nor have any been released, nor  will any be released. We have no way of seeing what the public wanted in the draft and how much Free TV Australia and ACMA’s drafts and then final version of the code vary from  the thrust of what the submissions proposed.

It’s a farce to call it public consultation if the wider public has no idea of just what input the public submissions had.

For all we know they could have been put on a bonfire at the back of Free TV Australia’s Sydney office and burnt in offering to Kerry Packer’s ghost (He had a strong dislike of rules and public consultation, even though he owned a public asset, broadcasting spectrum and the TV licence.) No one knows, which highlights the absurdity of it all.

So the key points are:

Existing limits on the time occupied by non-program matter continue to apply to broadcasters’ main services, except during election periods when an additional minute of political non-program matter will be permitted between midnight and 6.00 pm if the hour includes a news program.

Exemptions from time limits on non-program matter apply in relation to promotions that are 10 seconds or shorter and other material, including program listings and station IDs, which are 30 seconds or shorter.

Free TV Australia spun this as allowing broadcasters more flexibility:

The amendments to Section 5 are intended to provide licensees with additional flexibility in short promotions in program breaks. Both of these will not count toward the non program matter hourly limits. Amendments also clarify the maximum and average number of minutes of non program matter which are permitted during an election period and which are scheduled in a news program.

In other words, it’s all up to the networks to decide how many seconds of extra non-program material (which do not count as non-program material for the purposes of advertising limits). It could be 10 second in one hour, more than a minute in others. What it does mean that the station and  short promos will all be quickly sponsored and every program will have a sponsor or two, which will get billboards selling their message, at no cost to the networks.

That will be worth tens of millions of dollars a month to the networks, and it will gradually rise as they sort out their frequencies and loadings (for very popular programs). Nine will go overboard with the Winter Olympics in February, likewise Ten with the Commonwealth Games later in the year. But this will apply mainly to the main channels because that’s where the mass audiences are.

And then there’s the additional non-program matter to be permitted on multi-channels. Non-program matter includes spot commercials and program promotions.

An extra two minutes, mind you.

“Between 6pm and midnight, up to an additional two minutes per hour of non-program matter will be permitted compared with limits for broadcasters’ main services. Between midnight and 6pm, an additional one minute per hour of non-program matter will be permitted,” ACMA explained.

“The ability to broadcast more non-program matter is intended to support the new and emerging multi-channels; for example, the amendments are intended to provide flexibility to show European programs and live sporting events that have longer segments. Under the increased time limits, broadcasters will be able to ‘make up’ in later hours for advertising not shown during those longer segments,” ACMA said.

So there’s extra time on the digital channels. Next year we will have two channels for each of the networks, including SBS.  As these channels are low-cost operations, their already gold-mine characteristics will be further enhanced. This will be worth millions of dollars more a year to the networks. Depending on the way the new digital channels gather advertisers, the extra revenue could be more than $50 million a year for the industry.

These digital channels are very low cost and so are already attracting new ads to TV looking for niche audiences a for a low-cost outlay.

The change that allows promotions of an MA program to be shown at any time, except in children’s and preschool programs, is important. Provided the promotion complies with the classification criteria for that timeslot and the content and scheduling restrictions in the code around some G and PG programs, they will be OK. So promos for Underbelly minus the boobs for some slots, with the boobs for others.

From the space given in the ACMA announcement, the trade-off was more ad time for electronic complaints (and quicker handling by the networks means the complaint will often be dealt with and not make their way to ACMA to resolve, thereby saving ACMA money and time, leaving it more time to well, regulate).

ACMA will deny this, but look at what ACMA and chairman Chris Chapman said in the statement on Friday.

For the first time, viewers will be able to lodge complaints electronically using a live online form. For administration establishment reasons, this initiative will take effect on 1 March 2010 under provisions in the new code.

‘‘This is a major yet inevitable enhancement to the code as broadcasters themselves go online in search of new revenues and enhanced service offerings to their audience base,” said Mr Chapman. “It is also a positive response to submissions from members of the public and recommendations of the ACMA’s Reality Television Review and recent Senate Inquiries.

‘‘The community has expressed a strong preference for electronic complaints lodgement,” he said, “and the ACMA has vigorously pursued this innovation to make it more convenient for viewers to lodge complaints.”

That’s certainly the case, but no matter how they are lodged, the networks have shown themselves to be dilatory in many cases in handling them and resolving them to everyone’s satisfaction.

This won’t change that one bit. If it was good enough to impose a licence restriction on 2Day FM over Kyle and Jackie O’s lie-detector stunt with a 14-year-old girl, surely it was worth telling the world, and the networks, that ACMA is prepared to go to that extreme with the commercial networks if their complaint resolution process doesn’t prove to be good enough.

Why force people to head for the courts and the defamation process where the well-resourced networks have the advantage?

There was no public benefit test whatsoever in the code or in the ACMA statement for the TV audiences. That is a big disappointment. The networks can’t go pleading poor mouth and “we need the money, times are tough” because the slump (recession in TV land) bit hard.

The three commercial networks left themselves exposed with high debt, high costs at a time when revenues slumped. Those high debts and costs were instigated by the owners, no one else. The networks’ tough 12 or so months, was a direct result of flawed debt raisings by the owners.

Now the public is being forced to pay, and this is being ticked off by the “tickle me Elmo” regulator.

Peter Fray

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