BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Complaint received by broadcaster 21 working days after the broadcast – broadcaster declined to consider as a formal complaint – issue as to Authority’s jurisdiction to consider complaint

Findings
Section 6(2) of the Broadcasting Act states that complaints must be “lodged in writing with the broadcaster” within 20 working days after the broadcast – broadcaster was not obliged to consider complaint – Authority has no jurisdiction to consider complaint

This headnote does not form part of the decision.

Background

[1] Nilanka Fonseka wrote a letter of complaint to The Radio Network Ltd (TRN) about comments broadcast on 6 February 2006 on ZM radio (90.9FM).

[2] The complaint was received by TRN on 7 March 2006. TRN declined to accept his complaint as a formal complaint, as it had arrived “outside the 20 days allowed since the broadcast to qualify as a formal complaint”.

[3] Mr Fonseka referred his complaint to the Authority for consideration, stating that he was unhappy that TRN had not considered his letter as a formal complaint. He noted that the BSA’s website instructed complainants to “post” their complaints within 20 working days of the broadcast. He said that he had complied with this requirement.

[4] TRN maintained that, as it had not received the complaint within 20 working days of the broadcast, it was not obliged to consider it as a formal complaint.

Statutory definitions

[5] Section 6(2) of the Broadcasting Act 1989 states:

Nothing in this section requires a broadcaster to receive and consider any complaint that is not lodged in writing with the broadcaster within 20 working days after the date on which the programme to which the complaint relates was broadcast by the broadcaster.

Authority's Determination

[6] The issue before the Authority is whether TRN was obliged to consider Mr Fonseka’s letter as a formal complaint under section 6(2) of the Broadcasting Act 1989, even though it received his complaint 21 working days after the programme was broadcast.

[7] In the Authority’s view, the words “lodged in writing with the broadcaster” mean that broadcasters are not required to consider complaints which they have not actually received on or before the 20th working day after the date of the broadcast. The words of section 6(2) do not leave room for any other interpretation.

[8] Accordingly, the Authority finds that TRN was not obliged to consider Mr Fonseka’s complaint, and therefore the Authority has no jurisdiction to consider the matter.

[9] Finally, the Authority notes Mr Fonseka’s reliance on information from the BSA’s website, which stated that complainants should “post” their complaints within 20 working days. The Authority acknowledges and regrets that this information misled Mr Fonseka about the requirements of the Broadcasting Act. It has now amended the information on its website to ensure that it is consistent with the meaning of section 6(2).

For the above reasons the Authority determines that it has no jurisdiction to consider the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 June 2006

Appendix

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

1. Nilanka Fonseka’s letter of complaint – 3 March 2006
2. The Radio Network Ltd’s response to the letter of complaint – 15 March 2006
3. Mr Fonseka’s referral to the Authority – 18 April 2006
4. TRN’s response to the Authority – 25 May 2006