Broadcast Bulletin Issue number 150 25/01/10

Steve Power at Breakfast, Ruhaniat and Tib-e-Nabvi, The X Factor Results Show, Really Caught in the Act, Yvette and Karl: Down on One Knee, Retention of recordings & The Early Morning Breakfast Show

Standards cases

In Breach

Steve Power at Breakfast
Wave 105 (Solent and surrounding area), 3 December 2009, 05:30

Introduction

A listener was concerned that during this breakfast show, the presenter promoted Southampton’s West Quay Shopping Centre. In particular, he encouraged listeners to visit the shopping centre to enter its ‘advent calendar’ prize draw.

Bauer Media, which owns the station, confirmed that the material was a live presenter-read spot advertisement for the shopping centre. We therefore sought the broadcaster’s comments with regard to Rule 10.2 of the Code, which states:

“Broadcasters must ensure that the advertising and programme elements of a service are kept separate.”

Response

Bauer Media said Wave 105 admitted that, on this occasion, the advertisement was not clearly separated from programming. It added that, “in the presenter’s enthusiasm to talk up this local event he strayed a little from the script and as a result failed to separate it from programming with the use of a jingle.”

The broadcaster said that live presenter-read advertisements were generally placed in commercial breaks and “separated from programming using a jingle”. It added that, to avoid recurrence, all presenters had been reminded of this procedure and “not to veer from the commercial scripts.”

Decision

Broadcast output is defined either as editorial (programming) or advertising. For the purposes of transparency, it is a requirement of the Code that these must be clearly separated. It is important for the listener to be aware of whether content is editorial or has been paid for.

In this instance, Ofcom noted that:

• the presenter discussed the Southampton shopping centre immediately after he had announced the title and artist of the song that had just been broadcast: “ ‘To Love Again’ from Alesha Dixon . Now, if you get down to West Quay between now and Christmas Eve you can see the massive advent calendar that they’ve got. It’s 8 metres by 2 metres – that’s huge. Don’t know what size chocolates you need for that, to fit in under the doors”;
• the co-presenter responded: “Cor, big ones though, nice”; and
• the presenter continued, promoting the shopping centre’s prize draw: “And if you head down and register your details you’ll be entered into a daily draw to win a different prize that will be behind a different calendar door. Today, go to see if Nandos – you can win free meals for four…”

In this case, the advertisement was not clearly separated from programming by, for example, the broadcast of a station ident.

In addition, the material was presented as if it was programming. The presenter clearly deviated from his advertising script and the co-presenter responded to his ad hoc comments. In Ofcom’s view, these enhanced the editorial feel of the material. It would not have therefore been apparent to the audience that they were listening to paid for advertising.

Ofcom considered that this live presenter-read promotion lacked transparency as a paid-for spot advertisement. The broadcaster had failed to ensure that the advertising and programme elements of its service were kept separate, in breach of Rule 10.2 of the Code.

Ofcom therefore welcomed the broadcaster’s actions, noting that presenters had been reminded of the broadcaster’s procedure for achieving the separation of programming and advertising (by “using a jingle”) and not to deviate from appropriately cleared advertisement scripts.

Breach of Rule 10.2

In Breach

Ruhaniat and Tib-e-Nabvi
Venus TV, 9 September 2009, 12:05

This decision has been removed from Broadcast Bulletin 150 following a review by the Broadcasting Review Committee.

The Review Decision published in Broadcast Bulletin 166 replaces the decision originally published here, and can be viewed on the Ofcom website at: http://stakeholders.ofcom.org.uk/enforcement/broadcast-bulletins/obb166/

In Breach

The X Factor Results Show
ITV 1, 25 October 2009, 20:00

Introduction

This episode of The X Factor featured a live performance from the band Westlife that included laser lighting effects. The laser lights alternated rapidly at some points, causing the brightness of areas of the screen to change, and producing a flashing effect. No warning was given of these effects before the broadcast. Ofcom received complaints from three viewers who were concerned about the amount of flashing images broadcast during the programme and the distress these images caused to themselves and potentially to other photosensitive viewers.

Certain types of flashing images can trigger seizures in viewers who are susceptible to photosensitive epilepsy (“PSE”). Rule 2.13 ^(-1-) of the Code therefore states that:

“Broadcasters must take precautions to maintain a low level of risk to viewers who have photosensitive epilepsy. Where it is not reasonably practicable to follow the Ofcom guidance…and where broadcasters can demonstrate that the broadcasting of flashing lights and/or patterns is editorially justified, viewers should be given an adequate verbal and also, if appropriate, text warning at the start of the programme or programme item.”

Ofcom wrote to Channel TV (“Channel”), who complied the programme on behalf of the ITV Network for ITV1, and asked it to comment with regard to Rule 2.13.

Response

Channel said that it takes its responsibilities to maintain a low level of risk to viewers who suffer from PSE seriously and it had accepted ‘industry standard’ technology in the The X Factor studio to enable checks to be made on the lighting effects used in the Westlife show during the programme rehearsal. It stated that Westlife’s performance during rehearsal did not trigger any warning signs using this particular technology. On the day of the Westlife live performance the broadcaster was therefore confident, given the initial readings it obtained at the studios during the rehearsal, that the lighting effects would not breach Rule 2.13.

However, after testing the material again after it was transmitted, using different digital technology, the broadcaster accepted that the material did not comply with the appropriate PSE standards for a very short portion of the performance.

Channel also stated that after it received complaints from viewers following Westlife’s performance, it ensured that for the rest of The X Factor series any guest performance that employed lasers as part of the lighting effects would be preceded with a warning.

Decision

Ofcom’s Guidance Note ^(-2-) advises on the technical limits for flashing images and is intended to minimise the level of risk to photosensitive viewers. All broadcasters should ensure that their technical teams are familiar with Ofcom’s published guidance as regards flashing images.

Ofcom tested this segment of the programme against its published Guidance concerning PSE. It found that for two sequences during the Westlife performance, lasting just over three seconds in total, it contained flashing where the brightness, frequency and screen areas exceeded the “intensity” limits as set out in the Guidance. The sequences contained flashing at an average rate of approximately 15 flashes per second (the limit in Ofcom’s Guidance being no more than three flashes per second).

Ofcom Guidance also states that a prolonged sequence of flashing images below these “intensity” limits lasting more than five seconds may pose a risk to viewers with PSE. Ofcom noted that other sequences in the performance contained flashing that was below the “intensity” limits, and this was present for relatively extended periods of time. Ofcom therefore considered that this presented a further risk to viewers with PSE.

Ofcom notes Channel TV’s acceptance that the material did not comply with the appropriate PSE standards and the compliance measures it has taken in response to this. However, the broadcast of this material was in breach of Rule 2.13.

Footnotes:

  1.- Please note that on 16 December 2009, a revised version of the Code was issued. For programmes broadcast on or after 16 December 2009, Rule 2.12 will apply.

  2.-http://www.ofcom.org.uk/tv/ifi/guidance/bguidance/guidance2.pdf

Breach of Rule 2.13

In Breach

Really Caught in the ActV
ITV4, 1 December 2009, 13:25

Introduction

Really Caught in the Act is a series of programmes featuring real life footage of individuals engaged in crime and anti-social behaviour. This edition of the programme showed a pitch invasion at a football match, during which a member of the crowd was heard to shout “ get off the fucking pitch.”

Ofcom received one complaint from a viewer who considered this language was inappropriate given the programme’s afternoon scheduling. Ofcom wrote to ITV Broadcasting Limited (“ITV”), who complied the programme on behalf of the ITV Network for ITV1, and asked it to comment with regard to Rule 1.14 of the Code (the most offensive language should not be broadcast before the watershed).

Response

ITV said that owing to the poor quality of this particular recording, the remark, which made up part of the general background noise, was indistinct and had not been identified by the experienced compliance officer that reviewed the programme. However, it conceded that phrase was “just about discernable.”

Whilst acknowledging that such language was unacceptable at this time of day, ITV argued that the remark’s indistinct nature and the target adult audience of ITV4 lessened the impact of the offence caused to viewers. It added that this was demonstrated by the fact it received only one complaint about the incident. Nonetheless, upon receipt of the complaint, ITV said it immediately removed the language from the programme for future transmissions.

Decision

Our research indicates that the word “fuck” and its derivatives are an example of the most offensive language. Rule 1.14 states that the most offensive language should not be broadcast before the watershed. Ofcom noted ITV’s action to remove the offending language from the programme when the matter was brought to its attention and ITV4’s target adult audience.

However, in Ofcom’s view, although the quality of the recording was poor, the word “fuck” could be quite easily identified. The broadcast was therefore in breach of Rule 1.14 which makes clear that such language must not be broadcast before the watershed.

Breach of Rule 1.14

In Breach

Yvette and Karl: Down on One Knee
Living, 7 November 2009, 20:00

Introduction

Yvette and Karl: Down on One Knee is a programme documenting the personal lives of the television presenters, Yvette Fielding and Karl Beattie. Ofcom received one complaint that this particular programme included an instance of the most offensive language being broadcast before the watershed. Ofcom noted the programme contained the word “ fuck”, and that although the word had been partially bleeped, it was clearly possible to discern what was being said.

Ofcom asked Virgin Media Television Limited (“Virgin Media”), which holds the licence for, and provides compliance for Living, for its comments under Rule 1.14 of the Code (the most offensive language must not be broadcast before the watershed).

Response

Virgin Media apologised unreservedly for this incident, and recognised that “unbleeped strong language” broadcast before the watershed “would be an automatic breach of the Broadcasting Code”. The broadcaster added that it had reviewed the programme and stated that “although bleeped, unfortunately the bleeping in this occasion was not sufficient to fully mask the swear word”. Virgin Media said it had taken steps to ensure the offensive word in question was fully “bleeped” for all future transmissions.

Decision

Ofcom’s research ^(-1-) confirms that most viewers find the word “ fuck” and its derivatives
one of the most offensive words. Despite the fact the some attempt had been made to mask out the offensive word in question, Ofcom considered that this was inadequate in preventing viewers, including any children that might be watching, from being able to discern clearly what was being said. This broadcast of the most offensive language before the watershed was a clear breach of Rule 1.14.

Footnotes:

  1.- Language and Sexual Imagery in Broadcasting: A Contextual Investigation, September 2005.

Breach of Rule 1.14

In Breach

Retention of recordings
ABS-CBN News Channel, 6 November 2009

Introduction

ABS-CBN News Channel is a Philippines-based news channel that also broadcasts within Europe. As part of Ofcom’s routine monitoring of compliance with the Code on the Scheduling of Television Advertising (“COSTA”) we asked the broadcaster to provide recordings and transmission logs for 6 November 2009.

The broadcaster told us that it did not keep full recordings of its transmission as broadcast, but rather retained only an archive of individual programmes (without advertisements, trailers and other such material).

TLCS licence holders are required to keep recordings of all their output in ‘as broadcast’ quality (i.e. the same quality in terms of both sound and picture as when originally transmitted) for 60 days after transmission. If requested by Ofcom, Licensees are required to provide such recordings to Ofcom “forthwith”. These requirements are set out in Condition 11 of their licence and the associated guidance.

ABS-CBN Europe Limited (“ABS-CBN”) holds the licence for ABS-CBN News Channel. Ofcom sought ABS-CBN’s formal comments in relation to its failure to retain recordings of its output in ‘as broadcast’ quality, and therefore its inability to meet Ofcom’s request for these recordings.

Response

ABS-CBN told Ofcom that it believed itself to be compliant with Condition 11 of its TLCS licence, as it retained recordings of programmes. It said that it was not aware of the requirement to retain recordings in ‘as broadcast’ quality.

ABS-CBN said that it intended to be fully compliant with all of Ofcom's requirements, and it has committed to procuring the necessary equipment to record all of its output as broadcast from now on, including trailers and advertisements.

Decision

A broadcaster is required to comply with all the conditions in its licence. It is the broadcaster’s responsibility to ensure that it is aware of all of Ofcom’s requirements.

Ofcom notes that ABS-CBN is now taking steps to ensure it keeps copies of all its output. Ofcom will monitor the channel again in 2010, to check that it complies with COSTA and relevant licence conditions.

Breach of Licence Condition 11 (retention and production of recordings)

Resolved

The Early Morning Breakfast Show
Pirate FM, 14 November 2009, 09:00

Introduction

Pirate FM is a local commercial radio station that broadcasts to the Cornwall area. During the weekend of 14 and 15 November, the station ran a competition in which listeners were invited to call the studio’s landline number when they heard a clip of the song Precious Moments by The Three Degrees. Listeners were told that the first 20 successful callers would be awarded a bracelet. The competition was conducted 10 times over the course of the weekend.

Before the first round, the presenter said on two occasions, that the bracelets were worth £100 each.One of the winners contacted Ofcom explaining that, upon collecting their prize at their local retailer, a member of staff informed them that its true value was £42. The winner therefore considered that the prize description had been misleading.

Ofcom sought the broadcaster’s comments under Rule 2.11 ^(-1-) (prizes should be described accurately).

Response

Pirate FM explained that the information regarding the value of the bracelets was originally supplied by the manufacturer’s advertising agency. This was aired in two presenter ‘reads’, in good faith. On hearing the presenter’s promotion, the manufacturer contacted the station to advise that it contained an inaccurate valuation of the prize.

The broadcaster said that it immediately amended all ‘reads’ relating to this competition so that they contained the correct retail price. The amended ‘reads’ were aired a further nine times. However, it regretted that the first sequence of the competition had been aired prior to the amendment.

Whilst the broadcaster acknowledged that insufficient checks had been made to verify the accuracy of the prize description, it pointed out that additional pre-recorded promotional trails aired throughout the weekend did not contain the value of the prize at all. It argued that these and the early amendment to the presenter ‘reads’ would have lessened the impact of the error. To avoid a recurrence, it now requires its sales and programming team to receive written confirmation of prize details from the supplier and this must be approved by a senior member of staff before the competition can go ahead.

Decision

The nature and value of prizes are normally key elements that determine listeners’ participation in competitions and as such, it is important that broadcasters’ prize descriptions are accurate.
In this case, Ofcom is concerned that the broadcaster neglected to authenticate the value of the prize on offer and relied on information supplied by a third party which led to the inaccurate description of the prize on-air.

However, it welcomes the swift remedial action taken to ensure listeners were not misled in subsequent stages of the competition and the measures put in place to avoid a repeat incident. Ofcom also notes that entry was via a standard landline number which would not have generated revenue for the station and accepts that there was no deliberate intention to deceive listeners. It therefore considers the matter resolved.

Footnotes:

  1.-Please note that on 16 December 2009, a revised version of the Code was issued. Rule 2.16 now relates to the description of competition prizes.

Resolved

The full document is available below