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«COMMERCIAL RADIO INQUIRY Report of the Australian Broadcasting Authority Hearing into Radio 2UE Sydney Pty Limited February 2000 Sydney ISBN 0 642 ...»

-- [ Page 38 ] --

Now a letter was released yesterday to every member of the Federal Cabinet, signed by the heads of Optus, AAPT and the Australian Telecommunications Users Group, and the letter said, in part ‘The ultimate safe guard for consumers of telecommunications is effective and sustainable competition. Evidence abounds this does not exist at present because of Telstra’s dominant position in the market’. At that’s the story, and that’s the issue that the Government has to address.786 2UE’s Submission to the Hearing In addition to the general submissions made by 2UE, 2UE also made the following

submission in relation to this broadcast:

Jones had been very publicly associated with Optus (through public appearances and advertising) for some years. This must condition his listeners’ expectations of the way in which he will deal with Optus and related topics whilst on-air.

The broadcast does not directly refer to, or concern, Optus. There is no evidence that Optus caused Jones to make the broadcast. The subject had been covered by other media including newspapers.787 The Panel’s Findings The Panel finds that this broadcast is a current affairs program. It purports to concern matters focussing on political and economic issues of relevance to the community.

The Panel finds the available fact of Mr Jones commercial agreement with Optus was withheld. The existence of Mr Jones’ commercial agreement with Optus was not disclosed in the broadcast.

The Panel finds that this available fact was relevant because:

♦ the issue was of concern to and concerns Optus. In the letter referred to by Mr Jones, ‘the head of Optus’ had considered the issue important enough to send a letter to every member of Federal Cabinet;788 and Exhibit 86, p. 144.

See paragraph 102 of Jones’ statement; Submission made by 2UE – Alan Jones Broadcasts – Breach of Clause 2.2(d) of Code of Practice 2, D7 ♦ the broadcast was favourable to Optus. Mr Jones says that ‘the big issue, as I’ve said many times, is local telephone calls’.789 The Panel notes 2UE’s submission that Mr Jones had been ‘very publicly associated with Optus (through public appearances and advertising) over some years’, and that this must condition listeners’ expectations regarding his disinterestedness or otherwise. However, clause 3.1(a) provides that advertisements must not be presented as news programs or other programs. To the extent that the presentation of any live read advertisement is capable of causing confusion in listeners’ minds with the editorial comment of Mr Jones, the Panel would be concerned that those live read advertisements may have breached clause 3.1(a).

Further, listeners should not be required to be aware of the public appearances of Mr Jones for Optus, which are external to the matter broadcast. Mr Jones’ public appearances for Optus are not, in the Panel’s view, sufficient disclosure of a commercial relationship between him and Optus, which encompasses on-air editorial conduct.

The Panel therefore does not accept the submission of 2UE in this regard.

The Panel notes the submission of 2UE and Mr Jones that this matter was an item of legitimate news.790 However, even though the subject matter of this broadcast was also reported in other media, the Panel notes that the statements broadcast by Mr Jones were favourable to the interests of Optus.

The Panel notes 2UE’s submission that there is no evidence that Optus caused the material to be broadcast by Mr Jones. The Panel does not accept this submission. Whether Optus caused the material to be broadcast is irrelevant in this context.

The Panel finds that, in the presentation of a current affairs program, Mr Jones presented material in a misleading manner by withholding a relevant available fact, namely the existence of a commercial relationship between himself and Optus.

The Panel finds 2UE to be in breach of clause 2.2(d) of the Codes.

OPTUS SPORTS VISION

Material Provided to Mr Jones

On 30 June 1998, Optus sent the following ‘talking points’ to Mr Jones:

There continues to be some interesting manoeuvring in the pay television industry.

Only a couple of days ago Optus closed up its sports programming company because it was no longer commercially sustainable.

Yet within the space of 24 hours it’s been able to negotiate an equally attractive sports package with Channel Seven.

There’s been no harm done – Optus continues to hold key programming rights, including the AFL and NRL.

Exhibit 86, p. 144.

Exhibit 86, p. 144.

Exhibit 64, Statement of Mr Alan Jones, paragraph 102.

Pay television seems to be moving in the right direction – especially with Optus, which is probably the one operator hell bent on providing customers with a better deal.791 Material Broadcast by Mr Jones On 1 July 1998 Mr Jones discussed the Optus Sports Vision liquidation reassuring customers that the exclusive sports programming previously screened on Sports Vision will still be available to pay TV customers on Optus.

Mr Jones broadcast the following:

Optus – talking about sport – plenty of conjecture over that pay TV issue in … particularly this Optus Vision offshoot, Sports Vision. Of course, all the vultures then move over and say, hang on, the body is dead. Now, Optus. Sports Vision is the vehicle which channels Channel Seven’s AFL Coverage exclusively then to Optus TV. You might remember Seven, Channel Seven got both the free to air and pay TV rights to the AFL before there was any pay TV, and Optus Sports Vision was going to be the channel for the Sydney Olympic coverage, coverage again exclusive to Channel Seven and then exclusive to Optus.





Now, there was news earlier this week that a provisional liquidator had been appointed to Optus Sports Vision, and people were ringing me and saying, well what the hell’s happening, we see our… we see our pay TV sport on Optus Well hang on, there’s no problem. Optus has said that AFL and other programs now seen on Sports Vision will continue to be seen exclusively by Optus pay TV subscribers. This is all part of the manoeuvring of pay TV. It’s going to be difficult to go into the twenty-first century with two competing pay TV groups offering separate programming. But at the same time, while Optus has closed its sports programming company, Optus Sports Vision, because it wasn’t commercially sustainable, my understanding is that in the space of twenty-four hours, Optus was able to negotiate an equally attractive sports package with Channel Seven.

So it would seem for you, the viewer, with your Optus pay TV and you’re paying it every month, no harm done. Optus continues to hold key programming rights, including the AFL and certain national Rugby League games. So it seems Optus is committed to pay TV, making some rationalisation along the way. And if you’ve seen it last week on Optus, it seems quite clear that you’ll see it next week.792 2UE’s Submission to the Hearing In addition to the general submissions made by 2UE, 2UE also made the following

submission in relation to this broadcast:

Jones had been very publicly associated with Optus (through public appearances and advertising) for some years. This must condition his listeners’ expectations of the way in which he will deal with Optus and related topics whilst on-air.793 CWO.0002.0321 CWO.0002.0323 Submission made by 2UE – Alan Jones Broadcasts – Breach of Clause 2.2(d) of Code of Practice 2, D9 The Panel’s Findings The Panel finds that this broadcast is a current affairs program. It purports to concern matters focussing on social issues of relevance to the community.

The Panel finds the available fact of Mr Jones commercial agreement with Optus was withheld. The existence of Mr Jones’ commercial agreement with Optus was not disclosed in the broadcast.

The Panel finds that this available fact was relevant because:

♦ the issue was of concern to Optus. Optus sent ‘talking points’ to Mr Jones which summarised Optus’ position regarding the issue;

♦ the broadcast was favourable to Optus. Mr Jones says ‘people were ringing me and saying, well what the hell’s happening, we see our … we see our pay TV sport on Optus.

Well hang on, there’s no problem’, and ‘Optus is committed to pay TV’;794 and ♦ Mr Jones used the ‘talking points’ provided to him by Optus.

The Panel notes 2UE’s submission that Mr Jones had been ‘very publicly associated with Optus (through public appearances and advertising) over some years’, and that this must condition listeners’ expectations regarding his disinterestedness or otherwise. However, clause 3.1(a) provides that advertisements must not be presented as news programs or other programs. To the extent that the presentation of any live read advertisement is capable of causing confusion in listeners’ minds with the editorial comment of Mr Jones, the Panel would be concerned that those live read advertisements may have breached clause 3.1(a).

Further, listeners should not be required to be aware of the public appearances of Mr Jones for Optus, which are external to the matter broadcast. Mr Jones’ public appearances for Optus are not, in the Panel’s view, sufficient disclosure of a commercial relationship between him and Optus, which encompasses on-air editorial conduct.

The Panel therefore does not accept the submission of 2UE in this regard.

The Panel finds that, in the presentation of a current affairs program, Mr Jones presented material in a misleading manner by withholding a relevant available fact, namely the existence of a commercial relationship between himself and Optus.

The Panel finds 2UE to be in breach of clause 2.2(d) of the Codes.

OPTUS UPDATE

Material Provided to Mr Jones Ms Alexandra Lutyens, Sponsorship Manager at Optus, faxed Ms Mickey Braithwaite on 21 July 1998, ‘explaining a little more clearly than our direct mail piece’ the product known

as ‘Optus UpDate’.795 Ms Lutyens writes:

Optus Update is a system that pages (sends) text messages to your mobile screen. It can send information in one of a number of categories - these are nominated by you at the time you CWO.0002.0323 AJ.0004.0752 apply. These categories are: Shares, weather, news, traffic, financial, sports and Ansett Flight updates.

So if for instance you apply to have share information sent to your screen, you nominate the shares you would like tracked and at what level of % change in the share price you would like to have the information sent to you. It is then automatically sent whenever the share price changes to that degree.796 Ms Braithwaite forwarded Ms Lutyens’ fax to Mr Jones on 25 July 1998 with a covering

letter stating:

She [Ms Lutyens] has been instructed to forward information to you on a regular basis so that you can give it a plug on air.

They would like mentioned their new mobile phone system called Optus Update.

–  –  –

If one was to nominate they were interested in share information and you advised Optus of which share you wanted tracked and what % change in the share price etc - this information would automatically be sent whenever the share price changes to that degree.

Or id you wanted traffic information sent daily, one nominates on their Optus form which region of Sydney they are interested in and updates are sent daily at 7.30 am and 5.30 pm.

If one was interested in AFL or League, your phone can be programmed so that one can receive progress scores by the quarter, half and full time.797

A script dated 28 July 1998 covers the following:

My attention has just been drawn to a thing called Optus Update, which is the new mobile phone system for Optus.

–  –  –

All you would do would be to nominate to Optus which categories you are interested in - that is shares or weather or news or traffic or financial or sport, for full updates.

So if you nominated to Optus that you’re interested in share information, and you advised Optus of which share you wanted tracked and percentage change in the share price you needed to know, this information would be immediately sent whenever the share price changed to that degree.

Or if you wanted traffic information sent daily, nominate on your Optus form which area of Sydney you’re interested in and updates would be sent daily at 7.30 am to 5.30 pm.

If you’re interested in AFL or League and your phone could be programmed so that you received progress scores by the quarter, half or full time and all information all information can be altered through the update website.798

–  –  –

Material Broadcast by Mr Jones

On 28 July 1998 Mr Jones broadcast the following:

My attention’s just been drawn to a thing called Optus Update which is the new mobile phone system for Optus. I mean, this is how it works, amazing technology isn’t it? The mobile phone, the screen, the phone screen, you know, that’s in front of you - I’m not up to all of this, but I do have one of these things I never use, but it shows a text message, or it can. And all you would do would be to nominate to Optus - this is amazing - which categories you’re interested in.

So are you interested in information about shares or weather or the news or traffic or any financial information or sport? So if you nominated to Optus that you were interested in share information and you advised Optus of which share, BHP say, you wanted tracked, and the percentage change in the share you needed to know, that information would be automatically sent to you whenever the share price changed to that degree, that’d go on your screen.

Just supposing you wanted traffic information sent daily, you just nominate on your Optus form, because you come from Penrith, which region of Sydney you’re interested in, and updates would be sent daily at half past seven in the morning and half past five at night. Or if you’re interested in AFL or the League, your phone could be programmed - this is amazing so that you received progress scores by the quarter, half and full time. And all information can be altered through the update website.



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