Did on-air promotional announcements about office space and travel agency services break the rules on programme/advertising separation and land the broadcaster in the regulatory soup? Lee Rubin reports.
Who: Radio XL
When: 5 October 2009
Law stated as at: January 2010
In October 2009, during an edition of Radio XL's drivetime programme, two types of promotional material were broadcast. One dealt with a presenter-read promotion and the other was a sponsor credit. These promotions were brought to the attention of Ofcom by a listener's complaint.
Promotion of office space
After a commercial break and brief station ident, the presenter said:
"Traffic control updates for you in about three to four minutes' time. Time to squeeze in a little song. Just before that, I've got to tell you something and this is dedicated to you. In fact it's special attention to everybody, especially if you're a solicitor, if you're an accountants, travel agents and all those that need office space. Now, office space now available in a prime location on the main high street in West Bromwich. The premises are opposite the subway and have car parking to the rear. Over eighteen hundred square feet of office space is available, and great premises with competitive rates at a highly sought after location there. If you want any enquiries on there, if you do need office space, why not pick up the phone and call either David on 0121… [repeats name and number] or Richard on 0121… [repeats number] and they can help you out with that, if you need any office space – got loads available over in West Bromwich."
A listener made a complaint to Ofcom stating that that the presenter, whilst blatantly plugging office space/rooms for letting, was disrupting the usual programming, and that this did not even amount to a sponsorship or an advert as the presenter simply made an announcement.
Promotion of special travel rates
On investigating the listener's complaint over the promotion of office space, Ofcom also noted that, during the same drivetime programme, the following material was broadcast over a consistent rhythmic sound-bed, following a post-news weather-check ident:
Part 1 A pre-recorded sponsor credit: "Radio XL weather is brought to you in association with Southall Travel – taking you to the best destinations in the world".
Part 2 A presenter-read weather forecast.
Part 3 Pre-recorded promotional material concerning the sponsor: "For special rates to India, Pakistan, USA, Canada, Kenya, Dar-es-Salaam, Kilimanjaro and Dubai, call Southall Travel, twenty-four hours a day, seven days a week on 0121… [repeats number]".
In its investigation of the promotion of office space, Ofcom asked Radio XL for its comments under Rule 10.2 of the Ofcom Broadcasting Code 2008 (the "Code") which, for the purposes of transparency, requires that: "Broadcasters must ensure that the advertising and programme elements of a service are kept separate."
Radio XL responded explaining that it did understand one of the principles upon which Section Ten of the Code is based, namely: "To ensure that the independence of editorial control over programme content is maintained and that programmes are not distorted for commercial purposes." It stated that the presenter was clearly doing a paid for live read, and had made no attempt to disguise this as normal programming. Although there was no separation of the advertising and programme elements, Radio XL claimed that the nature of the output was indeed transparent to listeners because no attempt had been made to disguise the material as normal programming.
In direct response to the complaint, Radio XL said that as the complainant had found the announcement disruptive to normal programming, this therefore insinuated that it was not normal programming. It added that the complainant's reference to the presenter blatantly plugging office space indicated that the material in question was an advertisement. Radio XL therefore viewed the complainant's claim that the material was not sponsorship or an advert as contradictory, as it implied that the material was something else, without suggesting what.
Nevertheless, Radio XL did conclude that it may have been appropriate to avoid confusion and to separate the live read from the programming with a jingle.
In response to Ofcom's investigation into the promotion of special travel rates, Radio XL said the material contained in Part 3 of the broadcast material was an end tag, which Ofcom understood to mean a sponsor credit, as opposed to part of the weather forecast itself. Ofcom therefore sought the broadcaster's comments with regard to Rule 9.9 of the Code, which, with reference to sponsor credits, states: "Credits must be short branding statements."
Radio XL considered that in this instance there was a sponsor credit followed by the programming content (in the form of the weather) followed by another sponsor credit and then a station ident acting as a separation.
Radio XL believed that the issue appeared to be whether Part 3 of the broadcast material should have been treated as a second sponsor credit. It explained that, in its view, the continuous music bed under both the credits and the programming in between them, demonstrated that the credits were linked. It said that the second sponsor credit was short and clearly contained a legitimate advertising message, and that "brought to you in association with Southall Travel" was not repeated because it was obviously linked by the music bed to the first sponsor credit.
Ofcom's finding on the office space plug
Firstly dealing with presenter-read promotions, Ofcom's approach towards this area is that presenters may read advertisements (live or recorded) but broadcasters should ensure that the distinction between advertising and programming is not blurred and that listeners are not confused between them.
In this instance, Ofcom found that a commercial break was clearly separated from the material that was followed by a station ident. The presenter continued his drivetime programme, announcing that he would be playing a song before a travel update. He then dedicated to Radio XL listeners what he was about to say (i.e. "Just before that, I’ve got to tell you something and this is dedicated to you. In fact it’s special attention to everybody…"). Ofcom did note the broadcaster's claim that no attempt had been made to disguise the material as normal programming. However, whether or not such an attempt had been made, Ofcom considered that the 40 second promotion of available office space that followed was in fact presented seamlessly as programming.
Ofcom therefore ruled that, during the promotion of office space, Radio XL was in breach of Rule 10.2 of the Code because (i) it was not clear that the presenter was doing a paid for live read; and (ii) Radio XL had not ensured that the advertising and programme elements of its service had been kept separate.
Sponsor credit finding
Turning to sponsor credits, Ofcom noted that Rule 9.6 of the Code requires, among other things, that sponsor credits must appear before and/or after any sponsored programming features (in this case, a weather bulletin). Rule 9.9 also states that credits must be short branding statements.
Ofcom found that the promotional material that followed the weather update comprised merely advertising messages, offering special rates to eight destinations and providing Southall Travel's contact details and availability (i.e. "For special rates to India, Pakistan, USA, Canada, Kenya, Dar-es-Salaam, Kilimanjaro and Dubai, call Southall Travel, twenty-four hours a day, seven days a week on 0121… [repeats number] ").
Ofcom noted that the promotional message lasted 17 seconds, whereas, in general, sponsor credits on radio tend to last less than ten seconds, including the announcement of the sponsorship arrangement that is in place and any short, additional advertising message.
Ofcom further noted Radio XL's view that the consistent music-bed (music being played under the speech) throughout the opening sponsor credit, the weather update and the end tag (i.e. the promotional message for the sponsor) demonstrated a link between the material surrounding the weather bulletin itself. However, Ofcom did not consider that the music-bed was sufficient to remind the listener of any sponsorship arrangement.
Given all these circumstances, Ofcom considered that the sponsor credit of promoting special travel rates sounded more like a full advertisement than a brief branding statement. Therefore, Ofcom ruled that the sponsor credit was in breach of Rule 9.9 of the Code.
Why this matters:
Radio broadcasters should be aware of any promotions during their programming which fall outside the scope of standard advertisements. This adjudication by Ofcom highlights the need for broadcasters to ensure that the various elements that make up a broadcast remain distinct so that listeners are not confused between them.
By ensuring that advertising and programming are easily recognisable, radio broadcasters can avoid breaching the Code. This adjudication shows that it is advisable for presenter-read promotions to be clearly separated from programming by, for example, a jingle or station ident, or by scheduling them in the middle of a commercial break.
On sponsor credits, Ofcom has become increasingly concerned about abuse of the recent relaxation of the rules restricting their content. Broadcast Bulletin number 146 dated 23/11/09 gathers together a number of earlier TV and radio cases on the issue and includes a useful reprise of the applicable rules.
The fundamental principles are (i) the primary purpose of a sponsor credit is to inform the listener of the sponsorship arrangement; (ii) a full sponsor credit comprises the sponsor's name and identifies clearly the sponsored output and may also contain limited legitimate advertising; and (iii) sponsor credits on radio should not sound like advertisements.