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RNZ Magna Charter Part 5 – Beyond The Spin

Broadcasting and Media Minister Kris Faafoi was warned when Radio New Zealand’s management revealed their plan to replace classical music on its quality stereo FM broadcast frequency with a youth-oriented programme that RNZ risked “acting in breach of its funding arrangement and the law.”

The warning, from a senior policy adviser in the Ministry for Culture and Heritage, came in an aide-memoire providing the minister with “speaking points” for Cabinet on spectrum allocation. Published on the ministry’s webpage on Tuesday 16 June 2020 along with several other documents requested under the Official Information Act, the paper had three paragraphs redacted.

The senior policy adviser, exploring the potential financial and legal risks of the move, told the minister that the ministry’s “initial view is that taking RNZ Concert off FM before 30 June 2020 would put RNZ in breach of its funding agreement with NZ on Air, and section 175(2)(a)(i) of the Radiocommunications Act 1989. Both require RNZ to broadcast an FM Concert Service. We are seeking further legal advice from Crown Law to confirm this.”

Also redacted was the second part of a paragraph in a section dealing with the possibility of RNZ using the 102 FM national network set aside in 1999 for youth radio. The ministry believed that use of the 102 FM frequency was “a feasible option” but would require Cabinet approval.

Noting that commercial broadcasters had already indicated a desire to use the 102 FM band themselves and were concerned about potential competition from a taxpayer-funded youth radio, the ministry reminded the minister that Cabinet had originally agreed in 1999 that the 102 FM band could only be awarded after a “contestable process”.

The unredacted version released this week, on Monday 9 August, reveals that the ministry went on to say that “The commercial broadcasters may seek to challenge any allocation of 102 FM that is not contestable.”

Also revealed was a previously-redacted paragraph about the risks of allocating the reserved (102 FM) frequency to Radio New Zealand, saying: “There may be a legal challenge from commercial broadcasters if they feel the decision to allocate 102 FM is not sufficiently fair and transparent. Commercial broadcasters may argue they have a legitimate expectation that the spectrum would be allocated following a contestable process, in line with the 1999 Cabinet decision.”

The potential for RNZ’s new music strategy to ignite a politically embarrassing legal battle on multiple fronts was not new. The ministry’s status report for the minister on Wednesday 5 August 2019 reported that Radio New Zealand was developing a new service for young New Zealanders and was interested in obtaining access to the 102 FM network of frequencies.

The minister received an early warning of trouble ahead in a letter dated 25 October from Jana Rangooni, the chief executive of the Radio Broadcasters Association (RBA) representing commercial networks including NZME and Mediaworks, expressing concern about the potential impact of a new RNZ youth service on her members’ interests. The RBA had suspended work on a proposed revision of the voluntary Code of Practice for New Zealand music content on commercial radio pending clarification of the musical programming involved in RNZ’s youth music strategy. If RNZ’s output simply doubled up on programming already on commercial stations, that could jeopardise the relationship between NZ On Air’s music funding and commercial radio’s fulfilment of the local content code.

Without even taking into account the cost of firing up the 102 FM network — later estimated at up to $15 million — the political hurdles and time required to get Cabinet approval for using 102 FM must have appeared insurmountable. On Wednesday 5 February, the day that RNZ’s management “consulted” Concert FM’s 18 staff about their new strategy, the chief executive Paul Thompson also announced that Concert would be taken off FM radio on Friday 29 May. The move, which the ministry said Thompson had made “unexpectedly”, was reversed within a week. A face-saving offer to investigate putting the youth music station on the 102 FM frequency was embraced with enthusiasm by RNZ, although that option had always been on the table.

The redactions in some but not all of the documents published by the ministry in on 16 June were lifted after the intervention of the Chief Ombudsman, Peter Boshier. He had been asked to determine whether the reasons given for withholding the information — to protect confidentiality of official advice and free and frank expression of opinion between officials — were valid. He began his investigation on Friday 16 July, 2021 prompting this response from the minister 15 days later on Monday 9 August: “On reflection and due to the passage of time, I have decided to release the previously withheld material.”

Removal of the redactions not only revealed the information but also the likely motive for wanting to hide it. Exposure of the risk that RNZ’s management was prepared to take in pursuit of their youth music strategy would have certainly intensified the political embarrassment for everyone from the minister down.

But the redactions at least confirmed the existence of information that the minister and his officials wanted to hide. This was not the case with one document, however, which the ministry published on 16 June as a blank page apart from the heading “Stakeholder update and communications FAQ”. Released by request this week via a link to an obscure Radio New Zealand website, a “Stakeholder Update” from the chief executive, Paul Thompson, contained the first clear statement that Concert would no longer be available on FM from the middle of the year. The update was emailed at 8.07am on the morning of the day (Wednesday 5 February 2020) that management revealed their strategy to staff. Included were five pages of questions about the new music strategy and answers putting the best possible spin on it.

The email was sent to Olivia Cross, the minister’s private secretary for broadcasting and media; Bernadette Cavanagh, chief executive of the Ministry for Culture and Heritage; Juston Anderson, a senior Treasury analyst and John Barr, RNZ’s communications contractor. Thompson told them “Please call if you have questions.”

The minister’s office was quickly on the phone. Their question was obviously about Concert being taken off-air, a move that Cavanagh later said was unexpected. It was revealed in a paragraph which stated: “From the middle of 2020 RNZ Concert will no longer be available on FM but it will still be widely and easily available through online streaming and on-demand services.”

Thompson responded by email at 9.54am, six minutes before the scheduled start of the “consultation” meeting with Concert staff., Thanking Cross for her call, Thompson said: “I will change that paragraph to read: ‘From the middle of 2020 RNZ Concert will be widely and easily available through online streaming and on-demand services.’ ”

As in Henry Scott-Holland’s “Death is nothing at all” sermon, Thompson implied that RNZ Concert would have “only slipped away into the next room.” He added: “If asked questions about this I will say that the plan is for the new service to take over the FM network currently used by Concert and that the newly-formatted Concert will be easy to access in numerous ways and we are open to putting it on other platforms if and when they become available.”

Like those early fragile wood-and-canvas flying machines, RNZ’s new music strategy fell apart on impact with public opinion. But it was always doomed to fail. Cabinet and/or the courts would have sealed its fate. As revealed in RNZ’s spin sheets of questions and answers, Jana Rangooni had good reason to be afraid. Stay tuned.

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