Everybody's cross about KIIS

The media regulator, the Australian Communications and Media Authority (ACMA) announced at the start of this month that KIIS FM had breached the commercial TV code. ACMA described broadcasts in the second half of last year as “vulgar, sexually explicit and deeply offensive”.

There’s no arguing with that. If relaying the sound of staff urinating was not enough, the accompanying guessing game and explicit, sexualised language ensured the segments did not conform with “generally accepted standards of decency”. As notoriously difficult as it is to nail these standards, it’s hard to see many people disagreeing with ACMA’s finding. Where people might disagree is on the forthcoming regulatory response.

When it published its investigation report and announced it was considering enforcement action, ACMA said it wanted to make sure the network, ARN, “takes full responsibility for the content broadcast on their stations”. This is, after all, the fifth breach finding this decade against this program for the same decency rule. And it comes after a finding in March that a broadcast of the same program segment, ‘Tradie vs Lady’, in the first half of last year “went beyond the bounds of decency expected by the community and was done so deliberately and provocatively”.

So we can expect a serious penalty, right? Maybe not.
 
There are serious limitations on ACMA’s enforcement powers when it comes to breaches of industry codes of practice, including the Commercial Radio Code of Practice. Apart from informal agreements about improved compliance and staff training, there are only two regulatory tools available to ACMA. Firstly, it can, as it has in the past, accept an enforceable undertaking in which a licensee promises, for example, to improve its compliance systems. An enforceable undertaking is a useful instrument because a breach of it empowers ACMA to seek a more meaningful penalty such as a civil penalty order from the Federal Court.

But ACMA can’t just make ARN or its licensee companies deliver an undertaking; an undertaking needs to be offered. ACMA’s own version of this regulatory action, also with serious consequences if it’s breached, is a remedial direction. But remedial directions are only available for breaches of licence conditions, program standards and other obligations imposed by the Broadcasting Services Act, not for breaches of industry codes.

This gets us to the second option: an additional licence condition which can, for example, require compliance with the existing code rules. That’s not nothing, but it has its own limitation because a breach of an additional licence condition does not empower ACMA to seek a civil penalty – it can only lead to a remedial direction!

The problem with this convoluted path to significant enforcement action has been known for decades. It’s not ACMA’s fault that its powers are weak – the responsibility for that lies with successive federal governments. But there is an aspect that further complicates this particular enforcement dilemma, and one that might cause some reflection on ACMA’s previous response to breaches by KIIS FM. All of the broadcasts that are the subject of the latest two investigations took place in 2024 and at that time, there was actually an enforceable undertaking in place for the Kyle and Jackie O Show. This undertaking, which ran for a period of two years, had been accepted in response to other breaches of the decency rule, including comments about the Paralympics and about gay men and monkeypox. A breach of this undertaking would mean ACMA could seek an order from the Federal Court. Except … it looks like the undertaking itself has not been breached, even if the principal rule – the obligation to observe standards of decency – has been flouted on multiple occasions. This is because the undertaking required training and processes to promote compliance but didn’t actually require compliance with any rule. One thing it did require was a “second, back-up censor, to assist the primary censor to monitor compliance”. And we know from ACMA’s media release that ARN did actually have a second censor in place, but still the system failed.

The approach taken in this undertaking stands in contrast to most licence conditions, which do impose an enforceable obligation to comply with a requirement such as the decency rule in the radio code. Back in 2010, when the Kyle and Jacki O program was on 2Day FM, ACMA even used a licence condition to require the licensee to have regard to the welfare and wellbeing of children who are interviewed on air. That followed the notorious episode where 14-year-old girl was attached to a lie detector and asked questions about her sexual conduct.

It’s tempting in this situation to think in terms of 'ifs': if ACMA had used a licence condition rather than accepted an undertaking, and the same breaches in the first half of 2024 had been addressed by a remedial direction, then breaches in the second half of 2024 could have been addressed by an application to the Federal Court – or even a licence suspension.

In the end, we can’t accurately say how it might have turned out if a different approach had been taken. But we can be unhappy about being back at the beginning of the enforcement path, like a game of Trouble or Snakes and Ladders. We can also say that having to choose between a licence condition and an undertaking is an unnecessary restraint on the regulator. Our broadcasting laws are not serving the public interest, and it’s time they were changed.