BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(b) of the Broadcasting Act 1989
Complaint sent to Radio Live – broadcast was on Radio Pacific – complainant referred complaint to the Authority as he had not received a response from the broadcaster – issue as to Authority’s jurisdiction to consider complaint

Findings
Section 8(1)(b) states that a complainant can refer a complaint to the Authority if the broadcaster has not responded after receiving the complaint – complainant did not send his complaint to the correct “broadcaster” – Authority has no jurisdiction to consider complaint

This headnote does not form part of the decision.

Broadcast

[1]  Mike Edgar wrote a letter of complaint to Radio Live regarding comments he said were broadcast on that station at 5.40am on 27 January 2007. Having received no response from Radio Live, Mr Edgar attempted to refer his complaint to the Authority under section 8(1)(b) of the Broadcasting Act 1989.

[2]  CanWest RadioWorks Ltd, which owns and operates Radio Live, advised the Authority that the comments complained about had been broadcast on Radio Pacific, not Radio Live. It maintained that Mr Edgar’s complaint did not qualify as a valid referral under the Broadcasting Act 1989, as he did not send his complaint to the correct broadcaster.

[3]  Mr Edgar requested that the Authority determine whether he had made a valid referral under section 8(1)(b) of the Broadcasting Act 1989.

Statutory Definitions

[4]  Section 8(1)(b) of the Broadcasting Act 1989 provides that a complainant can refer a complaint to the Authority if:

…the broadcaster has not, within 20 working days after receiving the complaint, notified the complainant of –

1. 1. the decision of the broadcaster; or
   2. the action taken by the broadcaster in relation to the complaint 

Authority's Determination

[5]  The issue for determination by the Authority is whether Mr Edgar is entitled to refer his complaint to the Authority under section 8(1)(b) of the Act. There are two elements of section 8(1)(b) which must be satisfied:

(1)    the broadcaster must have received a complaint
(2)    the broadcaster has failed to respond to the complainant within 20 working days after receiving the complaint.

[6]  The Authority notes that Mr Edgar sent his formal complaint to Radio Live. However, the programme he complained about was broadcast on Radio Pacific. Although these two radio stations are both owned by CanWest RadioWorks Ltd, they operate separately and have different postal addresses.

[7]  In the Authority’s view, a complainant must lodge his or her complaint with the correct radio station, or with the overarching company (in this case, CanWest RadioWorks Ltd), in order for the Authority to conclude that the broadcaster has received the complaint under section 8(1)(b). Because Radio Pacific, the broadcaster that broadcast the comments Mr Edgar complained about, did not receive his formal complaint, the Authority concludes that Mr Edgar is not entitled to refer his complaint to the Authority under section 8(1)(b) of the Act.

[8]  The Authority observes that Radio Live ignored Mr Edgar’s formal complaint in the first instance. Had Mr Edgar been advised promptly that he had made an error in lodging his complaint, he would have had the opportunity to lodge his complaint with the correct broadcaster within the 20 working day limit. Although Radio Live had no statutory obligation to deal with Mr Edgar’s complaint, the Authority considers that it would have been good practice to issue a response to the complainant in these circumstances.

For the above reasons the Authority determinesthat it has no jurisdiction to determine the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
27 June 2007

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1     Mike Edgar’s formal complaint to Radio Live – 27 January 2007

2    Mr Edgar’s referral to the Authority – 1 March 2007