Opinion

‘No regrets’: ACMA chair Chris Chapman on a decade of keeping the media industry in line

For a decade Chris Chapman has led the media watchdog as it attempted to navigate an increasingly complex landscape. A fortnight before he finishes up in the role Chapman sat down with Nic Christensen to talk about his legacy and the future of the regulator. 

Chapman

Ask senior people in the broadcast industry for their view on ACMA boss Chris Chapman and it is immediately apparent there is no-one who is ambivalent. 

After ten years heading the powerful media and communications watchdog the Australian Communications and Media Authority (ACMA), Chapman has seen countless media owner CEOs and executives come and go, outlasted six prime ministers, five communications ministers and six departmental secretaries.

It’s partly because of this lengthy tenure that you get mixed views on Chapman. But even critics will begrudgingly acknowledge the work he has done to modernise the media watchdog, to make it engage more with the industry and to move the regulation debate forward in this country.

That being said, for some there remains a frustration with the man who has become a semi-regular legal sparring partner for some broadcasters.

As we sit down I’m intrigued about what he thinks about his relationship with the broadcast industry, to which Chapman responds: “I think the relationship between broadcasters and the ACMA is probably as proper, constructive and upbeat as it has ever been.

“Indeed, I think the broadcasters would acknowledge there is a constructive harmony in the relationship.”

A “constructive harmony” is an interpretation that some in the broadcast space dispute, but what is immediately clear is that Chapman does not resile from the approach he and his agency have taken.

Regulating the broadcast industry 

Alan Jones: Radio station 2GB has been breached 30 times under Chapman.

Alan Jones: Radio station 2GB has been breached 30 times under Chapman.

The investigations of the ACMA have often been front page news.

In the case of a broadcaster like Sydney radio station Radio 2GB – which has shock jocks like Alan Jones and Ray Hadley on its air waves – under Chapman’s chairmanship, the ACMA has chosen to investigate complaints 41 times, and found it in breach on 30 different occasions.

It’s perhaps not something you’d expect from a man who spent some 13 years in senior management positions with the Seven Network and Optus.

Was there an expectation when he took the job that he would be relatively favourable to the broadcasters and the wider telco sector?

“I don’t know what the expectations were of the broadcasting industry,” says Chapman, somewhat bemused by the question.

“But I do feel that over the years the relationship has waxed and waned between those who are regulated – particularly in the broadcasting space – and between myself, personally.”

Chapman argues that too often the focus has been on him and he emphasises that he is just one member of the authority that reviews and approves the decisions of the statutory regulator.

“Often, unfairly but inevitably, it becomes personal because you are seen as the person who is driving the agenda,” he admits. “I have always pushed back on that. I am but one of only five, six, seven or eight authority members at any one time.

“This is a robust environment where we seek consensus. It’s not as if the practical way the authority works means that I dominate.”

The ACMA review

ACMAChapman finishes up at the end of the month and leaves at a time when the precise future of the regulator is firmly up in the air.

In July then communications minister Malcolm Turnbull back decided to commission a “root and branch” departmental review of the ACMA which is being led by departmental deputy secretary Nerida O’Loughlin.

O’Loughlin is also rumoured to be a potential successor to Chapman, although the government has not yet named a successor, despite Chapman’s imminent departure.

Chapman explains that the Department has now completed its data gathering process and that he does not expect a government response will be released under his watch.

That said he does have strong views about the review’s approach and what some of its findings should be.

“The ACMA review will be of value if it does a number of things,” he begins, before launching into what he believes should be the departmental approach.

“It needs to ask what does our country wants out of our media/communications? What can media/communications contribute to the national interest?

“Given that, then what do we want the regulatory construct to be? And given that, what do you do want the regulator to look like?

“If you cascade down, you end up with a very useful exercise,” he says, before adding a warning.

“If you go arse about and start with a short term view of what the regulator should look like, and don’t do it against the context of the other considerations, that’s a very narrow, short-term exercise.”

Chapman, a lawyer by training, usually chooses his words in interviews very carefully. Is he is worried the Department’s review will be “arse about”?

“No, I’m not suggesting that is what the review is doing,” he quickly explains. “Indeed, I’m optimistic that the the review will address it in the right batting order.”

One of the key points that the review will address is the idea of splitting the ACMA chair and CEO’s roles.

This is a hotly contested issue and one that Chapman also has strong views on.

A number of people in the industry would be keen to see the government separate the ACMA CEO and chair roles, arguing the chair should be a check on the regulator’s CEO.

“That’s not a view I understand,” declares Chapman. “There is a driving logic which says that the chairman and the CEO are the same person.”

“If you start to bifurcate it creates its own destructive tensions. To me it’s a no-brainer that it needs to stay one and the same person.”

Black letter law, mid-tier powers and the Royal prank call 

With less than a fortnight left in the role it is clear that Chapman still has more to say and will not go without throwing a few final grenades – indeed, he has done a number of media interviews in an attempt to highlight what he argues is a need for stronger powers on broadcast enforcement.

Chapman is eager to help define his legacy and cement the role of the ACMA – which itself is just 11 years old – having been formed from a merger of the Australian Broadcasting Authority and the Australian Communications Authority back in 2005.

Asked about a critique which comes up from a number of quarters within the broadcaster community that Chapman’s reign at the ACMA has been characterised by a “black letter law” interpretation of the Codes of Practice (which govern what you can and can’t broadcast) it is immediately clear that this perspective annoys Chapman.

The quietly-spoken and usually very measured ACMA CEO fires up.

Chapman:

Chapman: there are certain parameters to the envelope.

“I don’t even begin to follow what that criticism means,” he responds, as if in equal measure perplexed and insulted.

“But I would say that there are certain parameters to the envelope that a regulator has to operate within.

“A broadcasting investigation is not ‘black letter law’. Anyone who uses that term is conflating a number of concepts. That leaves me cold,” he adds, seeking to underline the point.

Chapman has long been an advocate for increasing the powers of the ACMA to provide the media authority with so-called “mid-tier powers” that would allow it to fine broadcasters who breach the Codes of Practice.

“(The topic) has been met with deaf ears over the decade,” concedes Chapman, his frustration clearly evident.

He notes the government has given the watchdog the additional powers in the telecommunications space – which specifically allows the watchdog to fine companies for breaches – but these powers do not exist in broadcast.

“For all intents and purposes we don’t have the power to issue a direction to comply, which is much more common in the telco space and in the ownership/control space but not in the content or investigations space,” he says.

“You need a regulator to have a toolkit that reflects the new (modern) paradigm.”

For the record, not everyone is critical of the approach Chapman has taken and Julie Flynn CEO of FreeTV, which represents the free-to-air TV networks, lauds ACMA’s work in helping redefine how people view the challenges facing the sector.

“Chris has provided strong leadership to the ACMA,” says Flynn. “He has guided it through a period of rapid change impacting on all aspects of the industry.

“Under his leadership the ACMA produced three critical documents that have highlighted the challenges facing both the industry and the regulator; the Broken Concepts and Enduring Concepts papers and the Contemporary Community Safeguards Inquiry.

Screen Shot 2016-02-17 at 8.46.04 am

The ACMA’s Broken Concepts study sought to underline the impact media fragmentation was having on the regulatory framework.

 “I am sure these three reports will continue to help frame the debate around what and how we regulate in the future.”

Despite such plaudits Chapman still argues that the modern media environment means the ACMA needs more, not less, powers.

“From an outsider’s point of view, we have had the power to either simply ‘breach’ somebody – euphemistically called ‘hitting them with a wet lettuce’, and I’m exaggerating here to make the point – or at the other end of the spectrum, suspending or pulling the licence, which is something that opened up in the extraordinary circumstances of the Royal prank case.”

The so-called Royal prank case is perhaps one of the most fiercely-contested legal cases that occurred under Chapman’s watch and one that generated both national and international headlines.

Over the years, Sydney radio station 2DayFM often ended up under the ACMA microscope, usually for the antics of its former breakfast hosts Kyle Sandilands and Jackie O.

Hosts MC Christian and Mel Grieg

Summer fill-in radio hosts MC Christian and Mel Grieg were catapulted to national attention amid the Royal Prank case.

However, in late 2012 it was the broadcast of a prank call by fill-in summer nights hosts Mel Greig and Michael ‘MC’ Christian, who were impersonating Prince Charles and Queen, that saw one of the greatest tests of the regulator’s powers.

The two hosts doing the prank call were put through to the ward where the pregnant Duchess of Cambridge was being treated for acute morning sickness and spoke to the nurse looking after her. Days later the nurse who put the call through to the ward, Jacintha Saldanha would take her own life amid a global storm of media controversy.

The ACMA got drawn in because 2DayFM failed to obtain consent from the nurses involved before broadcasting the recording of the prank call. This was potentially a criminal offence and therefore a breach of its licence conditions.

2DayFM’s owners, Southern Cross Austereo would fight the case all the way to the High Court, where its chair, Max Moore-Wilton and CEO Rhys Holleran, eventually lost their case, which contested the powers of the ACMA to make a finding of criminal guilt and then potentially take them off-air.

While the ACMA won the case, a new leadership team taking over at SCA managed to broker an agreement not to take them off-air, instead imposing a series of less stringent penalties, leading to accusations Chapman had lost his nerve.

“The reality is the length of the suspension would not have been a long one,” explains Chapman. “The authority members were all of one mind that the negotiated outcome was a much more constructive outcome.”

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Chapman, however, does argue that the case was important because it both confirmed the ACMA’s powers and showed it was willing to engage in what he describes as “creative solutioning”.

“I think the new board and management of Southern Cross Austereo were a breath of a fresh air and a revelation, when Peter Bush and Grant Blackley came in, we quickly reached a sensible useful precedent,” he says.

“Broadcasters are also aware that the ACMA will take mature sensible decisions and I have no regrets about not pressing the button on the decision to suspend.

“I hope that is a good precedent for other broadcasters to follow and I hope that it has given an insight for people who follow the ACMA to the ‘creative solutioning’ that we can come up with, to avoid black letter law approaches.”

ACMA’s remit: A pretty exotic lot

While Chapman’s time leading the media watchdog is at an end it is clear he isn’t quite ready to exit the stage.

He has just been appointed President of the London-based International Institute of Communications, the first person in the Institute’s 47 year history to be appointed from outside Europe or the North Americas.

As we wrap up I ask him if he has any regrets.

True to form, Chapman is unapologetic but also reflective.

“I don’t have any,” he says emphatically. “None, and that’s very healthy for me.”

“The agency, and I, have probably made many many mistakes but we have never sought to gloss over and are often happy to review our positions.”

Asked if there are areas of his own or the ACMA’s performance he is disappointed in his cites his failure to push for mid-tier powers as the most obvious.

“My inability to move the dial on that would be a disappointment,” he says before going further: “My consistent inability to convey the width, depth and complexity of what we do has also been a disappointment to me – I mark myself heavily (on that).”

ACMA HotlineFinally I ask if he is frustrated that about the media focus on its broadcast regulation as opposed to all its other work on telecommunications, e-safety, spectrum, the Do Not Call register, etc.

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“It’s the classic 80/20 rule,” Chapman reflects. “We get 80% of our publicity/notoriety from 20% of what we do.

“What has blown me away over the ten years is the enormous brief we have. We are the co-ordinator of the satellites down to the co-ordinators of the Environmental Impact Statements on the submarine sea cable, to the town planner on the communications side.

“We are on the hardware side, then turn around on the content side and then throw in all the online safety work, nuisance communications and all the other programs that have been given to us by government – it is a pretty exotic lot.”

Chapman:

Chapman: happiness is wanting what you get.

Would he do it all again?

“You know I read a quote the other day that said: ‘success is getting what you want, happiness is wanting what you get’.”

“I can honestly tell you at the beginning of 2006 I was very happy because I felt it would pull it all together,” he says, reflecting on a career that covered various facets of the communications world, “and this has”.

Nic Christensen is the media and technology editor of Mumbrella. 

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