Investigation Report No. 2860

File No. ACMA 2012/1127 – PJ12/15

Licensee ARN Communications Pty Ltd

Station 2UUS (WSFM)

Type of Service Commercial Radio

Name of Broadcast Down Down by Status Quo (2012)

Date of Broadcast 11 July 2012

Relevant Legislation/Code

Section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012Clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011Clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992

Investigation conclusionNo breach of section 7 of the Broadcasting Services (Commercial Radio Advertising) Standard 2012 and as a consequence, no breach of the licence condition at clause 8(1)(b) of Schedule 2 to the Broadcasting Services Act 1992.

No breach of clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012

The complaintOn 16 August 2012, the Australian Communications and Media Authority (the ACMA) received a written complaint about Down Down by Status Quo (2012) broadcast by various licensees within the Australian Radio Network (ARN) including 2UUS (WSFM 101.7) in Sydney.

The complainant alleged that on 11 July 2012, 2UUS broadcast ‘a 3 minute Coles Supermarkets Jingle disguised as a song’ when paid-for advertisements 'must be clearly aired as such' and 'not disguised as content'.

Integrated advertising Long-form musical advertisements are a relatively new innovation in radio advertising. They are a form of integrated advertising.

Having regard to the objectives of the Broadcasting Services Act 1992 (the Act) 1, in the exercise of its functions (including those to regulate broadcasting services and to monitor compliance with codes of practice)2 the ACMA will generally aim to facilitate innovation in broadcasting, but in a manner that also pays proper regard to relevant community standards.

In this regard, the ACMA's review of the commercial radio standards noted some community concerns with integrated advertising.3 Listener research indicated that integrated advertising could be difficult for listeners to distinguish as advertising.4 However, the ACMA rejected calls to prohibit such advertising or regulate it differently to the more traditional 'spot' advertisements on radio.5 The ACMA also confirmed findings that many listeners agree that integrating advertising with other program content on commercial radio is acceptable.6

In undertaking this investigation, the ACMA has remained conscious of the need to balance the regulatory requirements that all radio advertising be sufficiently distinguishable with the industry's drive for innovation in radio advertising in an increasingly competitive market.

The investigationThis investigation considers whether ARN Communications Pty Ltd, the licensee of 2UUS (the licensee) broadcast an advertisement which:

was distinguishable from other program material during The No Repeat Workday – Ron E Sparks program on 11 July 2012, as required by the Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the Advertising Standard 2012)

was not presented 'as news programs or other programs' during The No Repeat Workday – Ron E Sparks program on 11 July 2012, as required by clause 3.1(a) of the Commercial Radio Australia Codes of Practice and Guidelines 2011 (the Codes).

1 In particular, sections 3(1)(b) and (f) of the Broadcasting Services Act 1992.2 See section 10 of the Australian Communications and Media Authority Act 2005.3 Review of the commercial radio standards – Option Paper, March 2011 at page 13.4 Listener attitudes to advertising, sponsorship and influence on commercial radio, February 2010.5 Review of the commercial radio standards – Report, November 2011 at pages 8-9.6 Review of the commercial radio standards – Option Paper, March 2011 at page 6 which cited the

Listener attitudes to advertising, sponsorship and influence on commercial radio, February 2010 at page 3.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 2

Under section 149 of the Act, the ACMA must investigate complaints about compliance with licence conditions. Compliance with the Advertising Standard 2012 is a condition of holding a commercial radio broadcasting licence.7

The complainant’s allegation that the licensee broadcast an advertisement 'disguised as content' raises compliance with the Codes. As a result, the ACMA has also decided to investigate the licensee's compliance with clause 3.1(a) of the Codes under section 170 of the Act.8

The programThe No Repeat Workday – Ron E Sparks program is described on the 2UUS website in the following way:

Monday to Friday 9am – 12pm. The perfect way to start the workday with 9 [sic] great classics from the last 30 years. Your favourite artists, the big trends, fun themes, every morning from 9 with Ron E Sparks.9

2UUS (WSFM 101.7 Sydney) is a ‘Classic Hits’ station. The 'Classic Hits' brand is described on the ARN website in the following way:

Classic Hits is the great all-rounder, delivering the perfect combination of music, chat and intelligent fun for 40-54 year olds who live in the now, but like to stay connected with the past.

The Classic Hits Network is all about Good Times & Great Classic Hits and broadcasts across Australia via WSFM 101.7 Sydney, Gold 104.3 Melbourne, 4KQ 693AM Brisbane & Cruise 1323 Adelaide.10

AssessmentThis investigation is based on the following assessed material:

a recording of The No Repeat Workday – Ron E Sparks program of 11 July 2012 submissions from the licensee, dated 12 September 2012 and 9 January 2013 publicly available information.

7 Under clause 8(1)(b) of Schedule 2 to the Act.8 Section 170 of the Act provides that the ACMA may conduct investigations for the purposes of the

performance or exercise of any of its broadcasting functions (as defined in the Australian Communications and Media Authority Act 2005) and related powers.

9 See www.wsfm.com.au/shows/no-repeat-workday-ron-e-sparks accessed on 5 October 2012.10 See www.arn.com.au/brands/classichits/ accessed on 30 August 2012.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 3

Issue 1: Compliance with section 7 of the Advertising Standard 2012

Relevant sections of the Advertising Standard 2012The operative provision of the Advertising Standard 2012 is section 7:

7 Distinguishing Advertisements

Advertisements broadcast by the licensee must be presented in such a manner that the reasonable listener is able to distinguish them, at the time of broadcast, from other program material.

Section 6 of the Advertising Standard 2012 provides the following relevant definitions:

6 Definitions

In this standard:

advertisement means material broadcast:

(a) which draws public attention to, or promotes directly or indirectly, an organisation, product, service, belief or course of action; and

(b) for which consideration has been provided by, or on behalf of, an organisation or supplier of the product or service, to a licensee, a presenter, or an associate of a presenter.

consideration means any money, service, benefit or other valuable consideration that is directly or indirectly paid, promised, charged or accepted for material that is broadcast, or is to be broadcast, but does not include a product or service provided free to a person solely for the purpose of having the product or service reviewed.

Complainant’s submissionsThe complainant submits that on 11 July 2012, 2UUS broadcast 'a 3 minute Coles Supermarket jingle disguised as a song' and accordingly that the advertisement was not clearly distinguishable as an advertisement.

The complainant noted that the version of Down Down by the English band Status Quo played by the licensee was commissioned by Coles Supermarkets (hereafter the ‘2012 version of Down Down’) and that the licensee had been paid by Coles Supermarkets to broadcast the 2012 version of Down Down.

Licensee’s submissionsOn 12 September 2012, the licensee provided the ACMA with a copy of the relevant broadcast, as well as written submissions. In its submissions, the licensee argued that the average 2UUS listener, who is 40+, would be aware of Status Quo and the original version of Down Down and would immediately be able to spot the difference between the 2012 version of Down Down and the original. The licensee also submitted that 40% of the words had been changed for the 2012 version of Down Down which made it significantly different from the original, and would easily allow the average listener to differentiate it. The licensee also referred to the television campaign for Coles Supermarkets that was concurrently launching across all free-to-air television networks ‘with a massive campaign’. The licensee argued this

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 4

would help to further identify the 2012 version of Down Down as an advertisement in the average 2UUS listener's mind.

The licensee broadcast announcements before and after the 2012 version of Down Down. The licensee submitted that the accompanying announcements were intended to ensure the 2012 version of Down Down was identifiable as a ‘commercial’ because the duration of the advertisement (3 minutes 54 seconds) meant it could not be played with other advertising.

The licensee noted that relevant station staff were instructed on the process required for pre and post tagging of the 2012 version of Down Down and were given suggestions on what to say when making those announcements.

FindingThe licensee did not breach section 7 of the Advertising Standard 2012 in its broadcast of The No Repeat Workday – Ron E Sparks program on 11 July 2012, as the 2012 version of Down Down was presented in such a manner that the reasonable listener would have been able to distinguish it from other program material. As a consequence, the licensee did not breach the licence condition at clause 8(1)(b) of Schedule 2 to the Act.

ReasonsIn assessing the broadcast by 2UUS of the 2012 version of Down Down against the Advertising Standard 2012, the ACMA must determine:

1. whether the 2012 version of Down Down was an advertisement under the Advertising Standard 2012; and if so,

2. whether it was presented in such a manner that the reasonable listener was able to distinguish it, at the time of broadcast, from other program material.

1. Was the 2012 version of Down Down an advertisement under the Advertising Standard 2012?For the broadcast of the 2012 version of Down Down to be an advertisement under the Advertising Standard 2012, the ACMA must determine that:

the 2012 version of Down Down drew public attention to or promoted Coles Supermarkets; and

consideration was provided by, or on behalf of, Coles Supermarkets to the licensee, presenter, or an associate of the presenter for the broadcast of that material.

The 2012 version of Down Down was broadcast, in full, at approximately 10.51 am on 2UUS.

Public attention or promotion

The licensee submits that the broadcast of the 2012 version of Down Down ‘is a commercial for Coles Supermarkets which uses a re-recording of Status Quo’s 1974 hit Down Down’. The ACMA considers that the 2012 version of Down Down expressly promoted Coles Supermarkets through references to:

the slogan 'down down prices are down' the 'big red hand' branding (which is the hook of this particular campaign) the company 'Coles'.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 5

The lyrics of the 2012 version of Down Down are at Attachment A.

Consideration

While the ACMA is not aware of the amount of consideration paid, the licensee confirmed in its submissions of 12 September 2012 that it had 'won' a proportion of Coles Supermarkets' radio advertising budget for the campaign commencing 11 July 2012. The campaign included 'limited plays of the full length version of the re-recorded commercial'.11

On this basis, the ACMA considers that the broadcast of the 2012 version of Down Down was an advertisement under the definition in the Advertising Standard 2012.

2. Was the advertisement presented in a manner that the reasonable listener was able to distinguish the advertisement, at the time of broadcast, from other program material?‘Ordinary, reasonable’ listener test

In assessing content against the Advertising Standards 2012, the ACMA considers the meaning conveyed by the relevant broadcast material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.

Australian Courts have considered an ‘ordinary, reasonable’ listener to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs12.

For the purposes of the Advertising Standard 2012, the attributes of the reasonable listener of a commercial radio station are considered the same as those described above by the courts.

How advertising material may be distinguishable to the reasonable listener

Whether an advertisement is distinguishable to a reasonable listener from other program material, is assessed according to a range of factors including content, style, tone, scripting and the placement of the advertisement.13

Research published in 2010 on the ability of commercial radio listeners to distinguish advertising from other program material suggests that there is some uniformity in the particular cues and signals that listeners use to determine whether material is advertising.14 The cues and signals include:

mentions of a brand or product name and/or repetition of a brand or product name provision of company contact details

11 ARN also confirmed, in its response to questions from Media Watch, that the 2012 version of Down Down is a paid advertisement for Coles Supermarkets, and that ARN agreed to play the full version of the re-recorded hit on its 'Classic Hits' network, see: www.abc.net.au/mediawatch/transcripts/s3561819.htm accessed on 14 August 2012.

12 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.13 Explanatory Statement, Broadcasting Services (Commercial Radio Advertising) Standard 2012,

page 4.14 Listener attitudes to advertising, sponsorship and influence on commercial radio, February 2010.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 6

highly or overly detailed discussions of products and services overly positive and unbalanced descriptions and discussions having a scripted or artificial feel associated with discussions.15

The timing of these elements is also relevant to the assessment of whether an advertisement is distinguishable 'at the time of broadcast' from other program material.

How was the advertisement presented on 2UUS?

On 11 July 2012, the licensee presented the advertisement in the following manner:

The full length version of the 2012 version of Down Down was broadcast during The No Repeat Workday – Ron E Sparks program.

The advertisement itself includes lyric references; ‘down down prices are down’, ‘savings’ and ‘big red hand’ as well as a single reference to ‘Coles’, which occurs in the final verse. The lyric structure, music, guitar riffs and performing artist are the same as the original version of Down Down.16

Ten minutes before the advertisement, this announcement was broadcast:

'…Now coming up, we're going to play the rock hit that's returning to popularity thanks to the Coles Supermarket jingle. The Status Quo hit is back'.

The advertisement was immediately preceded by this announcement:

'WSFM for Coles Supermarket. Here's Status Quo and Down Down'.

The advertisement was immediately followed by this announcement:

Good times and great classic hits here, we are rockin’ today with Status Quo, with Down Down. Now who would’ve thought a supermarket advertising campaign would bring such a great classic hit back. Status Quo. That’s right. They’ve re-recorded the original Down Down Coles style. Now if you enjoyed that, ah let us know at the website. Let us know at the website. Cos I’d be keen to play it again once or twice.

The ACMA notes the licensee’s submissions that without the accompanying announcements, the 2012 version of Down Down was distinguishable from other program material, because:

Over 40% of the lyrics have been changed from the original version, making it significantly different from the original.

The average 2UUS listener who is also familiar with the original version of Down Down would immediately spot the difference.

The average listener of 2UUS would recognise this version from television advertising for Coles Supermarkets.

15 Listener attitudes to advertising, sponsorship and influence on commercial radio, February 2010 at page 32.

16 The original version of Down Down was written by Francis Rossi and Rob Young and recorded by UK band Status Quo in 1974. In 1975, the original version reached number 1 on the UK Singles Chart and number 4 on the Australian charts, staying in the Australian Top 100 for 28 weeks. See http://australianmusichistory.com/australian-singles-chart-for-1975/ accessed on 31 August 2012.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 7

As discussed above, Australian Courts have identified the characteristics of the reasonable listener. The ACMA takes the reasonable listener of commercial radio to be generally familiar with, and aware of, radio advertising but without special knowledge of particular advertising campaigns. Therefore, in the assessment of the 2012 version of Down Down the ACMA does not consider the listener's familiarity with other advertising for Coles Supermarkets, such as the television advertising.

The licensee relies on the ability of the listener to spot the difference between the 2012 version of Down Down and the original version of Down Down. However, the Advertising Standard 2012 requires the reasonable listener to be able to distinguish the advertisement from other program material rather than to identify it as an edit, or a different version, of the same song.

The licensee stresses the importance of lyric changes between the original version of Down Down and the 2012 version of Down Down. The ACMA has considered the lyrics of the 2012 version of Down Down, in so far as they are relevant to whether the reasonable listener was able to distinguish the advertisement from other program material. The combination of the advertisement's placement, style, tone and content (including the lyrics) affects the reasonable listener's ability to distinguish an advertisement from other program material.

The ACMA’s view on whether the advertisement was presented in a manner that the reasonable listener was able to distinguish the advertisement, at the time of broadcast

The advertisement in and of itself

In the view of the ACMA, the reasonable listener is less likely to be able to distinguish an advertisement that takes on the characteristics of the surrounding program material, in this case music programming.

The reasonable listener of commercial radio is familiar with a short form and scripted format for advertising material. This type of 'spot' advertising is used extensively on 2UUS, and particularly within The No Repeat Workday – Ron E Sparks program. The majority of advertisements within this program have a duration of 30 seconds and are broadcast in groups surrounding news and information breaks. The broadcast of the 2012 version of Down Down was very different to these usual 'spot' advertisements, given that it was broadcast adjacent to music programming, separate from other advertising, and ran for almost four minutes.

In the present circumstances, the advertisement by itself had a greater likelihood of being indistinguishable from music programming in circumstances where it appeared alongside 'classic hits' in a no repeat format. The length of this advertisement is similar to that of a 'classic hit' song. Further, the 2012 version of Down Down is heavily based on an existing 'classic hit' song, is performed by a 'classic hit' band, and was broadcast among other 'classic hits' in a no repeat format. All these factors contributed to making it difficult for the reasonable listener to distinguish the 2012 version of Down Down as an advertisement. The lyric references in the advertisement to ‘down down prices are down’, ‘savings’, ‘big red hand’ and ‘Coles’ were insufficient to outweigh the above factors. The lyrics alone were not enough to allow the reasonable listener to distinguish the advertisement as such, even if the reasonable listener was also familiar with the original version of Down Down and aware of the television advertising for Coles Supermarkets.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 8

The ACMA is of the view that the 2012 version of Down Down (in and of itself) presented alongside 'classic hits' was not distinguishable as an advertisement to the reasonable listener of commercial radio.

Surrounding announcements

While the broadcast of the 2012 version of Down Down in and of itself was not distinguishable as an advertisement, the broadcast of surrounding announcements could have made it so.

The licensee advised that relevant station staff were instructed to broadcast accompanying announcements with the advertisement, suggesting that the licensee also anticipated doubt about the ability of the reasonable listener to distinguish the 2012 version of Down Down.

On 2UUS, three announcements were broadcast surrounding the advertisement (set out above). Some of the words used in these announcements might have indicated that the advertisement was music programming rather than an advertisement, for example references to it as 'the rock hit' and as 'a great classic hit back'. The announcements did advise that the 2012 version of Down Down was 'thanks to the Coles Supermarket jingle', 'for Coles Supermarket' and part of a 'supermarket advertising campaign', although, the announcements did not explicitly state that the 2012 version of Down Down was an advertisement for Coles Supermarkets. The ACMA accepts that the broadcast would have, in practice, provided a sufficient basis for the reasonable listener to understand that Coles Supermarkets had paid the licensee to broadcast the 2012 version of Down Down, specifically because of:

the proximity and clarity of the announcements that accompanied the advertisement; combined with

the cues and signals present in the advertisement.

Therefore, the ACMA is satisfied that the reasonable listener would have been able to distinguish the 2012 version of Down Down as an advertisement.

Conclusion

The ACMA’s view is that at the time of the broadcast of the 2012 version of Down Down, the reasonable listener of commercial radio would have been able to distinguish the advertisement from other program material because of the combined cues in the advertisement and surrounding announcements.

The ACMA considers the cues provided by the surrounding announcements are important to this finding because song-length advertisements are unusual, and in this case, may have been especially difficult to distinguish from the surrounding music programming given the advertisement was heavily based on a ‘classic hit’ song, was performed by a 'classic hit' band and was presented in a 'classic hits' program.

For the above reasons, the ACMA is of the view that the licensee presented the advertisement in such a manner that the reasonable listener would have been able to distinguish the advertisement, at the time of broadcast, from other program material.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 9

Issue 2: Compliance with clause 3.1(a) of the Codes

Relevant sections of the CodesClause 3.1 is the relevant provision of the Codes and provides:

3.1 Advertisements broadcast by a licensee must:

(a) not be presented as news programs or other programs;

The Codes include the following relevant definitions:

advertisement means:

material broadcast a substantial purpose of which is to draw public attention to, or to promote, directly or indirectly, an organisation, product or service, belief or course of action; and

consideration has been provided by or on behalf of an organization or a supplier of the product or service to a licensee, or to a presenter, or an associate of a presenter for the broadcast of that material by the licensee.

news program means a program or bulletin, the predominant purpose of which is to present factual new information on current events and which is typically prepared by journalists

program/s means all matter broadcast and is specifically referred to in and applicable to Code of Practice 1.

The definition of 'program/s' above relies on what is specifically referred to and applicable to Code of Practice 1 of the Codes. Code of Practice 1 does not specifically exclude any type of content from being considered ‘program/s’ and it has previously been applied to music broadcast by a commercial radio licensee.17

Complainant’s submissionsThe complainant submitted that on 11 July 2012, 2UUS broadcast 'a 3 minute Coles Supermarket jingle disguised as a song' when paid-for advertisements must not be 'disguised as content'.

Licensee’s submissionsAs explained above, the licensee submits that the 2012 version of Down Down was broadcast as an advertisement but was not played with other advertisements due to its extended duration. The licensee submits that it decided to play announcements accompanying the 2012 version of Down Down to be sure that it could be identified as advertising for Coles Supermarkets even though it was under no obligation to do so.18

FindingThe licensee did not breach clause 3.1(a) of the Codes in its broadcast of The No Repeat Workday – Ron E Sparks program on 11 July 2012, as the 2012 version of Down Down was not presented as 'other programs'.17 See ACMA Investigation Report No. 2132 and ACMA Investigation Report No. 2156.18 As submitted by the licensee in the letter dated 12 September 2012.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 10

ReasonsIn assessing the broadcast on 2UUS of the 2012 version of Down Down against clause 3.1(a), the ACMA must determine:

1. whether the 2012 version of Down Down was an advertisement under the Codes; and if so

2. whether it was presented as 'other programs', in other words as music programming.

1. Was the 2012 version of Down Down an advertisement under the Codes?For the broadcast of the 2012 version of Down Down to be an advertisement under the Codes, the ACMA must determine that:

a substantial purpose of the 2012 version of Down Down was to promote Coles Supermarkets; and

consideration was provided by, or on behalf of, Coles Supermarkets to the licensee, presenter, or an associate of the presenter for the broadcast of that material.

The 2012 version of Down Down was broadcast, in full, at approximately 10.51 am on 2UUS.

Substantial purpose to promote

The licensee submits that the broadcast of the 2012 version of Down Down ‘is a commercial for Coles Supermarkets which uses a re-recording of Status Quo’s 1974 hit Down Down’. Given Status Quo recorded the 2012 version of Down Down for Coles Supermarkets, and the 2012 version of Down Down includes the key slogan ('down down prices are down'), references to the 'big red hand' branding and to 'Coles'; the ACMA considers that a substantial purpose of the 2012 version of Down Down was to promote Coles Supermarkets.

Consideration

As noted above, the licensee confirmed in its submissions of 12 September 2012 that it received consideration for broadcasting the 2012 version of Down Down.

On this basis, the ACMA considers that broadcast of the 2012 version of Down Down was an advertisement under the definition in the Codes.

2. Was the advertisement presented as 'other programs'?In the Codes, the definition of ‘program’ includes ‘all matter broadcast’ including songs and music.

Under clause 3.1(a), the ACMA needs to determine if the presentation of the 2012 version of Down Down was as 'other programs' (namely music programming) rather than as an advertisement.

The complainant has contended that the 2012 version of Down Down was presented as a song in a 'classic hits' music program, rather than as a promotion for Coles Supermarkets.

The licensee made no additional submissions (than those discussed above) regarding compliance with the Codes.

How the licensee presented the advertisement on 11 July 2012 is detailed above.

ACMA Investigation Report – Down Down by Status Quo (2012) broadcast by 2UUS on 11 July 2012 11

The ACMA’s view on whether the advertisement was presented as 'other programs' (namely music programming)

The advertisement in and of itself

In the view of the ACMA, an advertisement is more likely to be presented as music programming when the advertisement takes on the characteristics of music programming.

The advertisement was not presented in the usual manner for advertising on commercial radio, and in particular advertising within The No Repeat Workday – Ron E Sparks program on 2UUS. The majority of advertisements within this program have a duration of 30 seconds and are broadcast in groups surrounding news and information breaks. The broadcast of the 2012 version of Down Down was very different to these usual 'spot' advertisements, given it was broadcast adjacent to music programming, separate from other advertising, and ran for almost four minutes.

In the present circumstances, the advertisement by itself had a greater likelihood of being presented as music programming as it appeared alongside 'classic hits' in a no repeat format. The length of the advertisement was similar to that of a 'classic hit' song. Further, the 2012 version of Down Down is heavily based on an existing 'classic hit' song, is performed by a 'classic hit' band, and was broadcast amongst other 'classic hits' in a no repeat format. All these factors contributed to the impression that the advertisement was music programming.

The ACMA is of the view that the 2012 version of Down Down, broadcast alongside 'classic hits' (without considering surrounding announcements) would be presentation of the advertisement as music programming.

Surrounding announcements

While the advertisement in and of itself may be more like a song than an advertisement, the broadcast of accompanying announcements that make clear that the 2012 version of Down Down is an advertisement could alter the presentation of the advertisement so that it was no longer presented as music programming.

The licensee advised that relevant station staff were instructed to broadcast announcements with the advertisement, suggesting that the licensee also anticipated doubt about the presentation of the 2012 version of Down Down in and of itself.

On 2UUS, three announcements were broadcast surrounding the advertisement (set out above). Some of the words used in these announcements continued to present the 2012 version of Down Down as music programming rather than as an advertisement, for example references to it as 'the rock hit' and as 'a great classic hit back'. On the other hand, the announcements stated that the 2012 version of Down Down was 'thanks to the Coles Supermarket jingle', 'for Coles Supermarket' and part of a 'supermarket advertising campaign'. While none of the announcements explicitly said that the 2012 version of Down Down was an advertisement, the ACMA accepts that the words in the announcements would be understood as indicating that Coles Supermarkets had paid the licensee to broadcast the 2012 version of Down Down. Therefore these announcements made it sufficiently clear that the advertisement was an advertisement and therefore it was not presented as music programming.

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Conclusion

The ACMA’s view is that the 2012 version of Down Down was not presented as 'other programs' (namely music programming), because of the accompanying announcements. In particular, the number of announcements broadcast with the advertisement, and the words used in those announcements, presented the advertisement as an advertisement, not a 'classic hit' song.

The ACMA considers the accompanying announcements are important to this finding because song-length advertisements are unusual, and in this case, may have been especially difficult to differentiate given the unique presentation style of the advertisement; it was heavily based on a ‘classic hit’ song, was performed by a 'classic hit' band and was presented in a 'classic hits' music program.

In the view of the ACMA, the advertisement was not presented by the licensee as 'other programs' (namely music programming) and therefore the licensee did not breach clause 3.1(a) of the Codes.

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ATTACHMENT A – Lyrics of the 2012 version of Down DownDown down, prices are downDown down, prices are down

We want all the world to seeTo see you're savin'And your savin's for realDown and down and down they go

Again again again again again again againPrices are downDown down, prices are downDown down, they’re stayin' downDown down, deeper and downDown down, prices are down

Down down, prices are downDown down, prices are down

When you see that big red handStart countin' savingsCount 'em on your big red handDown and down and down they go Again again again again again again againPrices are downDown down, prices are downDown down, they’re stayin' downDown down, deeper and downDown down, prices are down

Down down, prices are downDown down, prices are down

When you need a helping handCount on the savings Of that Coles big red handDown and down and down they go

Again again again again again again againPrices are downDown down, prices are downDown down, they’re stayin' downDown down, deeper and downDown down, prices are down

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