There must be a small clique of investigators in the Australian Communications and Media Authority who give quiet thanks in their evening prayers to the Sydney radio controversialist Kyle Sandilands. Complaints against his daily 2Day FM program, the Kyle & Jackie O Show, must just about keep them in continuous employment.

There have been six separate ACMA investigations of the program under the Commercial Radio Codes of Practice since April 2009, the last of which resulted in this morning’s finding that the station had broadcast comments by Sandilands that were “deeply derogatory and offensive”, and that 2DAY was therefore in breach of the code. (Under the Act, the media authority only has the power to find against the station licensee, Southern Cross Austereo, not the person whose words prompted the initial complaint.)

There was little doubt ACMA would agree that Sandilands’ on-air comments on November 22 last year were in breach. It was toe-turning stuff. After a News Limited online journalist, Alison Stephenson, had written critically about his failed foray into television, Sandilands first called her a “fat slag”, a “bullshit artist”, a “little troll” and a “piece of shit”. He then went on to criticise her hair, clothes and bre-sts, and to tell Stephenson that “you should be fired from your job”. Why the producer of the program failed to use his 10-second delay facility to crash out of this tirade remains a mystery.

But it’s not the repulsiveness of the offence itself that should interest us here. Sandilands is a blatant self-publicist who courts controversy through deliberate acts of outrage. The more important issues are in the detail of ACMA’s findings, and the surprisingly mild corrective measures they intend to impose.

In announcing their decision the chairman of the authority, Chris Chapman, confirmed that Sandilands’ comments had been “unacceptable”, “gratuitous” and were delivered with “vitriol”. Further, ACMA found his on-air rant breached the code of conduct by offending against “generally accepted standards of decency”.

There are additional guidelines to the code, which require licensees to “avoid the use of overt s-xual references in relation to a woman’s physical characteristics” and not to broadcast material “which condones or incites violence against women”. Yet in their finest flogged-with-a-feather style, the authority today managed to find that Sandilands had not breached this provision because “although the comments conveyed hatred, serious contempt and severe ridicule on the grounds of gender, they were not considered to ‘incite’ those feelings in others”. Lawyers like to find these nice little distinctions.

So what punishments are Sandilands and Southern Cross Austereo likely to suffer? Are you sitting down? ACMA is proposing an additional condition on 2Day FM’s broadcast licence. Oh, the horror! Another slap with a wet lettuce from our lofty regulator of the electronic media. The authority has merely notified the station of its intention to tack a few lame paragraphs onto its current licence that waffle about not demeaning women, placing undue emphasis on gender and the use of overt s-xual references. In addition, 2Day must implement a training program for staff and contractors in relation to these proposed conditions.

Management must be quaking in their snakeskin boots.

It’s understandable that with media regulation such a prominent public concern at the moment (Finkelstein, the Convergence Review), ACMA might have chosen to tread on eggshells as it inched towards its response to the Sandilands outrage. And we should note that only four months, including the Christmas/New Year break, have passed between the complaint and the finding — an admirable turn of speed from the authority.

But rarely will Chapman and his staff be presented with such a clear-cut opportunity to demonstrate their willingness to use ACMA’s legal armoury to stomp on such unacceptable behaviour by a broadcaster. They have the power to suspend or cancel a licence. Instead, they drafted a pallid new subsection of the Broadcasting Services Act.

And what has been the response from 2Day? Its CEO, Rhys Holleran, has dismissed the proposed extra conditions as “ambiguous” and “unworkable”. But they’ve indicated to ACMA that the station will introduce several “safeguards”, including extending the broadcast delay on the Kyle & Jackie O program from 10 to 30 seconds, installing a warning light in their studios to notify announcers when content “may be of concern”, and telling Sandilands and his management about “the sort of remarks that are unacceptable”.

Behold the wonders of light touch media regulation.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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