Investigation Report no. BI-674
Summary Licensee Highland FM Station Highland FM 107.1 Co-operative Limited Type of service Community Broadcasting
Relevant legislation Broadcasting Services Act 1992 (BSA)
Subparagraph 9(2)(c)(i) of Schedule 2 [encourage participation in operations]
Decision The Licensee: Breached subparagraph 9(2)(c)(i) of Schedule 2 [encourage participation in operations]
Background
In June 2023, the Australian Communications and Media Authority (ACMA) received a complaint about Highland FM 107.1 Co-operative Limited (Licensee). The complaint suggested that the Licensee may not be complying with the licence condition in the Broadcasting Services Act 1992 (BSA) to encourage community participation in operations. On 20 July 2023, the ACMA commenced an investigation under the BSA into the Licensee’s compliance with the licence condition at subparagraph 9(2)(c)(i) of Schedule 2 to the BSA [encourage participation in operations]. The Licensee The Licensee has held a long-term community radio broadcasting licence to represent the general geographic area community interest in the Bowral RA1 licence area since 1987. The Licensee operates a community broadcasting service under Broadcasting Service Licence number 1651 with the on-air ID ‘107.1 Highland FM’. Assessment and submissions This investigation has considered the following information received by the ACMA:
The June 2023 complaint about the Licensee.
In November 2023, January 2024, and February 2024, from the Licensee: o Recent annual general meeting (AGM) and board meeting minutes. o A diagram of its organisational structure, showing its management committee, working committee, participation subcommittee, and programming subcommittee. o Numbers of members and volunteers for the last five years. o Strategies for encouraging the community to participate. o Recent membership decisions, including an explanation of how it expelled a member in the last two years. o Copies of its Rules of Highland FM 107.1 Co-operative Limited (Rules) and records of amendments to the Rules lodged with NSW Fair Trading since 2003. o An analysis of amendments to the Rules lodged with NSW Fair Trading since 2003. Other sources are identified in this report where relevant. 2 of 7 ACMA final investigation report — Highland FM 107.1 Co-operative Limited BI-674 Issue: Did the Licensee breach subparagraph 9(2)(c)(i) of Schedule 2 to the BSA [encourage participation in operations]? Relevant licence condition Schedule 2 Part 5 – Community broadcasting licences 9 Conditions applicable to services provided under community broadcasting licences (2) Each community broadcasting licence is also subject to the following conditions: […] (c) the licensee will encourage members of the community that it serves to participate in: (i) the operations of the licensee in providing the service or services […]
Finding
The ACMA is of the view that the Licensee has breached subparagraph 9(2)(c)(i) of Schedule 2 to the BSA. Reasons Relevant information The complaint received by the ACMA raised concerns about a potential lack of community participation in the operations of the Licensee, particularly in decision-making. ‘[…] the operations of Highland FM 107.1 suffer from a lack of membership or community involvement in decision-making processes. Control and power are consolidated among a few individuals, hindering transparent, fair, and professional management of the station. […] There is a notable absence of programming and volunteer committees, […] regular Board and management meetings are lacking, meeting minutes are not shared with presenters and cooperative members, and there is insufficient reporting to the public and members.’ In 2023 and 2024, the Licensee submitted information to the ACMA about its operations, members, and volunteers, as set out under Assessment and submissions above. Relevant guidelines The ACMA’s Community Broadcasting Participation Guidelines provide that licensees may encourage participation in operations by having sound corporate governance practices and valuing and promoting membership and volunteering:1 1https://www.acma.gov.au/publications/2010-06/guide/community-broadcasting-participation-guidelines. 3 of 7 ACMA final investigation report — Highland FM 107.1 Co-operative Limited BI-674 Sound corporate governance practices Sound corporate governance practices include: Measures to prevent the concentration of control in the hands of a few individuals. Procedures for complying with regulatory requirements that apply to the service and its organisational structure, including obligations for companies and incorporated associations under relevant Federal, State and Territory legislation for holding meetings and lodging documents. Valuing and promoting membership and volunteering Valuing and promoting membership and volunteering include: Offering a range of ways in which people can participate in the service. Having open membership (meaning licensees may only refuse membership on the basis of specific, transparent, and reasonable criteria, and should have adequate grievance or review mechanisms). Analysis Corporate governance practices The information provided by the Licensee indicates that it has some appropriate practices to prevent the concentration of control. For example: It has committees and subcommittees which give the community opportunities to participate in the decision-making of the service. At its recent AGMs, the Licensee has reported to members about its finances and activities. However, the information provided by the Licensee shows that it does not have appropriate procedures for complying with regulatory requirements that apply to its organisational structure for holding meetings and lodging documents. Specifically: The Rules specify that ‘Meetings of the Board […] must be held at least once every 3 months’. However, the board meeting minutes provided indicate that more than three months passed between board meetings on three occasions since June 2021. The AGM minutes provided show that in 2022, the Licensee’s members voted to amend rule 50A of the Rules by special resolution. However, the Licensee submitted that it did not lodge the special resolution with NSW Fair Trading within the required timeframe. This meant that the decision by the members to amend the Rules was not registered and did not take effect. 4 of 7 ACMA final investigation report — Highland FM 107.1 Co-operative Limited BI-674 Valuing and promoting membership and volunteering The information provided by the Licensee indicates that it takes steps to promote membership and volunteering, such as inviting participation on-air, via social media, on its website, and at community events. The ACMA also notes that, since 2019, the Licensee’s member numbers have remained relatively stable, and its volunteer numbers have increased significantly. Year 2019 2020 2021 2022 2023 Members 812 63 59 61 66 Volunteers3 41 36 82 96 Over 120 However, the information provided also shows that in 2022, following consideration of a complaint about a member, the Licensee expelled the member in a way that was not compliant with its Rules. Rule Process set out in the Rules Process the Licensee submitted that it followed 50A(c) ‘The board may, by resolution, expel the member from the cooperative (in accordance with Rule 49) […]’. The board decided ‘that the correct action to take was to expel [member] from the membership of Highland FM 107.1 Co-operative Ltd.’ 49 ‘A member may be expelled from the co-operative by special resolution’ and ‘Expulsion of a member shall not be effective, until the special resolution expelling the member is registered.’4 The board did not propose a special resolution to expel the member or register any expulsion resolution with NSW Fair Trading. Expelling a member in a way that was not compliant with its own Rules was not consistent with the ACMA’s expectation for licensees to have open membership, which includes only refusing membership on the basis of transparent criteria. 2The Licensee submitted that the reduction in members between 2019 and 2020 may be attributed to record-keeping changes, as it decided to stop including members who had not paid their membership fees in its member numbers. 3The Licensee submitted that the volunteer numbers are estimates, as it does not keep a register of volunteers. 4Rule 65 of the Rules specifies that a special resolution ‘means a resolution of which notice has been given of the intention to propose the resolution as a special resolution and which is passed either by two-thirds of the members who vote at a general meeting in person or by three quarters of the members who cast votes in a special postal ballot of members’. 5 of 7 ACMA final investigation report — Highland FM 107.1 Co-operative Limited BI-674
Conclusion
The information provided indicates that the Licensee has in place some appropriate practices to prevent the concentration of control and takes steps to promote membership and volunteering to the community. However, it also indicates that the Licensee Does not have appropriate procedures for complying with regulatory requirements for holding meetings and lodging documents. Expelled a member in a way that was not consistent with the principles of open membership. Therefore, the ACMA’s view is that the Licensee breached subparagraph 9(2)(c)(i) of Schedule 2 to the BSA. 6 of 7 ACMA final investigation report — Highland FM 107.1 Co-operative Limited BI-674
