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Offshore Petroleum Amendment (Miscellaneous Measures) Bill 2007 Tax Laws Amendment (2007 Measures No. 5) Bill 2007 Trade Practices Amendment (Small Business Protection) Bill 2007

CHAIR —Welcome. Would you like to make an opening statement?

Ms Flynn —On behalf of our industry, thank you for the opportunity to address the committee and to speak to our submission on the film production offsets package. We represent the 48 commercial free-to-air television licensees in Australia. Free TV congratulates the government on this package, which we are confident will encourage increased production of Australia content by making production more cost effective. Free TV strongly supports the application of the producer offset equally across all sources of production of Australian programming. If the package is to achieve its stated aim of stimulating and supporting all forms of Australian production, it is important that all producers are affected equally.

Concerns that the offset will result in broadcasters choosing to commission in-house productions over independent productions are unfounded. We went through a similar exercise before my time when SPAA went to the High Court over the fact that under CER New Zealand programs were allowed to count as production for the Australian content standard. SPAA argued most vigorously that all that would happen was that the broadcasters would replace Australian production with cheap New Zealand content. In the six or seven years since that court case, that has never happened. I think the only productions that we have seen from New Zealand have been the film Once Were Warriors and a couple of documentaries—none of which, as I understand it, have counted to the drama quota. We have seen an exercise in crying wolf on these things in the past.

By way of background, according to the official ACMA figures for 2004-05, which are the last figures available—I gather that the figures for 2005-06 are coming out at the end of this week—commercial free-to-air broadcasters spent over $113 million on drama production, which was up 26 per cent over five years. We broadcast over 500 hours of first release Australia drama and 96 hours of first release children’s drama.

There is, and has been for a number of years, a healthy balance between in-house and external drama production—and we will talk to that in a minute. There is nothing in this legislation that will change that balance. Broadcasters will always make production programming decisions based on new and creative concepts which appeal to audiences, regardless of where they come from.

It is also important to remember that there are already significant incentives for broadcasters to commission independent productions. Funding through the FFC, for instance, is limited to independent producers. Under the Australian content standard point system for adult drama, a higher number of points are awarded to independent productions with a licence fee over a set amount. I am sure you will have many questions and that is why my colleagues are here today to answer them. Thank you.

CHAIR —Thank you. Would anyone else like to make a contribution?

Ms Horsburgh —Thank you for the opportunity to speak to this. I would like to immediately address some of the concerns that continue to be raised by SPAA and to, hopefully, provide some comfort on some of these issues. I want to address the concept that if we were to access rebates high-end production would disappear. It is a fundamentally unsound perception. Speaking from Nine’s point of view, high-end drama is in fact more cost effective for us to make than longer running series, and this is because of the point system. For instance, Sea Patrol, as a miniseries, carries greater points than a long-running series like McLeod’s and therefore becomes more cost effective for us to make. Consequently, high-end drama is a way of branding the network.

CHAIR —What is the difference with the high-end drama?

Ms Horsburgh —High-end drama is something that actually has a big budget. Sea Patrol has a big budget because of the fact that it is set on the ocean and the Navy are involved.

Ms Flynn —Both of Channel 9’s major dramas which are on at the moment, Sea Patrol and McLeod’s, are independently produced.

Ms Horsburgh —Yes, they are, and that is not going to change because that is the way we can brand our network—by doing high-end drama, drama that looks good and is quality. From our perception, Nine is a producer. When we operate as a producer, we are not doing that in lieu of dealing with independent producers. For instance, in the eight productions that we currently have going, seven of them are with independent producers and only one is what you might call in house, and that is with an independent producer. I would also like to define ‘in house’ from our perspective. Our model of in house is working with an independent producer. It is purely a business model that enables an independent producer to be able to make their creative project, and all the crew are taken from the freelance community. In that sense, it is no different than if we were one of the larger production houses. Whether it is Southern Star, Beyond or Fremantle Media, they all access their crew, production people, creatives, writers, directors—everybody—from the community at large. In that sense, in this instance, we are no different; we are exactly the same. It is a flexible model for us to use.

Ms Flynn —I would like to make the point that all Channel 10’s production is outsourced through independent production houses, Channel 9’s major productions at the moment are independently produced and Channel 7 has a mix—and I am sure John can speak to this in a minute. In fact, I noted that even SPAA quoted that the figure at the present time was somewhere between 78 and 81 per cent for independent productions. There is no suggestion that networks are suddenly going to want to reinvent the infrastructure to bring all this stuff back in house. It does not make any sense. John, do you want to talk about the Seven model?

Mr Holmes —I think it is all cultural. We have a slightly different culture at Channel 7. We have in the past been much more involved in in-house drama. We have always outsourced, if that is the correct expression, telemovies or miniseries—that high end that Jo was talking about. All our children’s drama is totally independently produced. We have had a lot of success with our own in-house drama, but earlier Mr Burnett talked of a fear that we would in fact turn our backs on independent producers and their ideas. This is not true. Simply, the idea is the thing. If it is a good idea, we are going to grab it no matter where it comes from. Whether it an independent or an in-house production, we would make it.

CHAIR —At the various networks, what is the extent of the in-house production infrastructure—cameras and sets and paid staff?

Ms Horsburgh —Channel 9’s model is different from Channel 7’s. Our model is that we operate purely as a production company. We have an independent producer. We set up a business deal with them and they go ahead and hire all the head creators—the writers, the designers, the directors—and everybody else, such as the grips, gaffers, crew and DIPs. Nobody works for Channel 9. They all now work for the production. But it is in house in the sense that we are operating as the executive producer, in effect. Everyone is hired for the run of the series, exactly as you would be hired if you were working for Southern Star and Southern Star was making something for a network. They would go out and source all your creative people and crew from the freelance community. There is no difference.

CHAIR —Who are your contractual arrangements with? Who do those staff have contractual relationships with?

Ms Horsburgh —Their contractual arrangements are with the producer and with the project. In the case we were referring to it is called Canal Road. Everyone is contracted to that project, which is no different than if they were contracted to work on Police Rescue.

CHAIR —And then you have a contractual arrangement with the producer of—

Ms Horsburgh —We have hired the independent producer as if we were any other independent production house. We hire that producer because we feel that producer is bringing the right creative energy and creative vision for that show.

CHAIR —So are you effectively providing a lump sum for the supply of the product as opposed to individual contractual arrangements with gaffers and cameraman and actors and whatever?

Ms Rooney —We would have a budget and we would set up a company. That budget goes into that company as cash flow and everyone is paid from that.

Senator BERNARDI —Ms Flynn, what business is FreeTV in? Where are the revenues derived from?

Ms Flynn —They are derived from advertising.

Senator BERNARDI —So you are in the business of selling advertising spots?

Ms Flynn —That is right. That is our business.

Senator BERNARDI —What then is the attraction—and there must be an attraction—about producing in house? You retain the royalties or the ongoing stream of income.

Ms Flynn —Let us not forget that the history of drama in Australia was largely built on the back of television. Television gave everybody their first start, whether it was through the ABC, Channel 7 or Channel 9, which were the original stations. It was not an accident that 20 years later we saw a flourishing film industry emerge in Australia. We have been the backbone of drama; we continue to be the backbone of drama. Film gets all the attention, because they are the sexy part of the industry and can roll out the top-flight international stars and all the rest of it. But broadcasting—television—is what has kept the audiovisual production industry in Australia alive for over 50 years, and we are very proud of the history that we have.

Traditionally, in-house production was the main form of production but Ten moved away from that model back in the early 1990s and they have shown no sign of wanting to go back to that model after having been in receivership and then emerging from it and going through a fairly difficult time to re-establish themselves. Channel 7, which has a long history of making fantastic Australian dramas, is the only network that has kept the in-house tradition alive and flourishing. We heard a lot from SPAA about how we are a highly protected oligopoly et cetera. But I would point out that this highly protected oligopoly paid over $251 million in licence fees to consolidated revenue on top of our normal taxes in 2004-05—we are waiting to see the next set of figures, which will probably be higher—and we continue to do so. Over the last 10 years we have contributed over $2 billion in licence fees to consolidated revenue on top of our normal taxes. The Australian content standard is not about protecting the independent production industry. The Australian content standard is very specific and I am happy to table it for the committee. It says:

The object of this standard is to promote the role of commercial television broadcasting services in developing and reflecting a sense of Australian identity, character and cultural diversity by supporting the community’s continued access to television programs produced under Australian creative control.

So there is no argument. Now there is an incentive that was put into the last review which says that you get more points if you have an independent production that has a certain set fee. That has not changed; nothing in this legislation will change that.

Senator BERNARDI —I accept that. My question was meant to reflect on what SPAA told us. I asked them directly what the incentive is for a television network to produce in house rather than pay 30 per cent of the production cost as a licence. They said that it was about external sales, revenues and 100 per cent licensing ownership, I guess.

Ms Horsburgh —From Nine’s point of view, what you are looking for is basically a flexible business model, if you like. So we are looking for a mix of what I call ‘high end’ and what I call ‘middle-range budgets’, and we have only just now entered into this situation with Canal Road. That is giving us a way of approaching drama production that enables us to make the best idea that comes through the door, whether it is in house or from—

Senator BERNARDI —You do not care where you get it from.

Ms Horsburgh —Neither does the audience.

Senator BERNARDI —If it is a good idea it is going to help with the ratings.

Ms Horsburgh —Yes, we are absolutely ratings driven. If it does not rate, it tanks.

Senator BERNARDI —If you are going to buy drama from an independent product house and you know that they are getting a 20 per cent tax rebate, which effectively reduces their costs, is there a risk that it is a buyers’ market? From the licensing perspective, you can say, ‘Well, hang on a second, we are going to pay you less.’

Ms Horsburgh —No.

Ms Rooney —No. The licence fee remains the same; it will not be reduced. If it is an FFC project it is set. If it is ACMA it is set at a point—I think it is about $340,000 per hour—

Ms Horsburgh —For independent production.

Ms Rooney —For independent production—to qualify for three points.

Senator BERNARDI —What were they referring to as 30 per cent or 25 per cent of the cost of actual production from a licensing fee.

Ms Rooney —I do not know. On a miniseries, if the licence fee is $400,000 and to go to the FFC the production budget is $800,000, that is 50 per cent. That is in the case of some productions. It does vary depending on the production.

Senator BERNARDI —We might have to seek some clarification on that matter. Ms Flynn, you said that $113 million was spent on production last year by the major networks.

Ms Flynn —In 2004-05.

Senator BERNARDI —In-house production.

Ms Flynn —No, all over, on Australian drama—that is what we spent on Australian drama.

Senator BERNARDI —Buying it or licensing it.

Ms Flynn —Yes, buying it or licensing it.

Senator BERNARDI —How much in dollar terms was produced in house?

Ms Flynn —The figures quoted by SPAA were that 78 to 81 per cent of it was independently produced.

Senator BERNARDI —So we are talking about $25 million at most. Even at that level, why should the taxpayers give free-to-air TV a $5 million break?

Ms Flynn —The taxpayers have given through 10B and 10BA, which, unlike what was claimed here, has never been accessed. I understand that is incorrect.

Ms Rooney —My understanding is that Channel 9 accessed 10BA through the Macquarie Film Fund and through the Macquarie Nine Film and Television Fund for a slate of productions in the early nineties and for some series of McLeod’s Daughters.

Ms Horsburgh —That is correct.

Ms Flynn —The point being, however, that we pay our taxes like everybody else. We are a licensed business and we pay more than our taxes; we pay our super tax on top of our taxes and we are entitled to access tax deductions in the same way anybody else does. We are producers in this business. So the argument that, somehow or another, it is illegitimate does not stand up to any scrutiny.

Senator HURLEY —Just to continue on the issue of accessing subsidies before the 10B: it is not set up in a way which assists broadcasters doing in-house productions to use it—is that right?

Ms Flynn —I think we heard SPAA say that it was clumsy and it was not working for the production industry at large, and we would agree with that. That is why the 20 per cent rebate is an advance on where we were before. But we are no different from the independent producers in relation to that.

Senator HURLEY —It was not accessed by broadcasters previously because it was simply too difficult?

Ms Flynn —That is my understanding of it.

Senator HURLEY —Perhaps, Mr Holmes, if Channel 7—

CHAIR —I think we heard evidence that it was accessed, but it is the extent of the access I think you are talking about, Senator Hurley.

Senator HURLEY —Yes.

Ms Rooney —And it did not attract the investors that they were hoping to attract.

Ms Horsburgh —That was the point I mentioned: when it was floated, we did not get the investors in; therefore, it became unviable.

Senator HURLEY —Was that also Channel 7’s experience?

Mr Holmes —Channel 7 has not actually accessed funds from the government for production for many years. The last was the miniseries, made in Queensland by Liberty Productions, entitled Through My Eyes. We do not usually go the subsidy route; we usually fund all our productions 100 per cent and have additional money coming from a distributor attached to the project.

Senator HURLEY —There was also some comment that the broadcasters, as a large business entity, would then access a tax deduction for the expense of production and would then also have access to the producer offset.

Ms Flynn —I do not think our position would be any different from Southern Star or any of the other production houses in that respect, would it?

Ms Horsburgh —We are just talking about production costs.

Ms Rooney —I guess that when you have the rebate it would negate the 20 per cent production costs that you have claimed. I am not quite sure, because I am not into the tax system or into the business, but I imagine it will not in any way be a double dipping because normally the tax law does not allow that.

Senator HURLEY —Let us turn to the two compromises which have been suggested, one of which is that you would be able to access the producer offset above your mandatory requirements.

Ms Flynn —All I am saying is it is still another way of ensuring that we cannot access it, because people do do more than they are mandated but not everyone does more than they are mandated. We are surprised by this argument. We were involved in the discussions—we might not have been involved in discussions with SPAA—but there is nothing in the announcement from the government which says, ‘This is for independent producers.’ We are completely surprised by the nature of this discussion that, all of a sudden, something is turned around into this big thing about nasty broadcasters, when we understood it was always about production and, as I said, we are the main underwriters of production in Australia. So I do not think that any of the compromises are genuine compromises.

Senator HURLEY —So the government’s stated intention, which is to increase outside investment in the industry plus equity in production, would—certainly under Channel 9’s model and possibly for some productions in Channel 7—still be a worthy aim under any new system because you do it under a separate model. Is that right? Do you get any outside equity involved in your productions? You said that you stream all the budget through one organisation. Is there any outside equity involved?

Ms Horsburgh —In the in-house one?

Senator HURLEY —Yes.

Ms Horsburgh —No, not in this one. I cannot really speak for the past. I was not involved at the time, so I do not know what the situation was. The fact of the matter is that every deal is unique. There is no particular ‘this deal’ or ‘that deal’ and you either get A or B; every deal is unique, as I understand it. I think Senator Bernardi was trying to get to that earlier on when talking about the back-ends and what have you. I do not think there is a particular model on that. I think that each deal is different and it depends on the deal that is done with the particular independent producer at the time. That is my understanding.

Senator HURLEY —Under mandatory requirements, broadcasters have to have a certain amount of Australian content in their productions.

Ms Flynn —Yes.

Senator HURLEY —So you are producing that anyway—and maybe a little bit above that?

Ms Flynn —Yes.

Senator HURLEY —What difference will this producer offset make? Will it just make it cheaper, basically?

Ms Horsburgh —The hope is that it will mean that you can make more hours—so, for example, you can make a longer-running series because you know that you will have that rebate going back into production. It also might enable you to explore greater diversity in development with an opportunity, knowing that there may be some financial model that you can use to get that up and made. There is always a search for the dollar when trying to get these projects made.

Senator HURLEY —So you are saying that that saving will go towards better production rather than the bottom line of the broadcaster?

Ms Horsburgh —Yes; it goes to production cost.

CHAIR —Better production or more production?

Ms Rooney —Both.

Ms Horsburgh —And, because you have a guaranteed amount coming into production, that hopefully means that you can make more drama.

Senator HURLEY —I will just play the devil’s advocate here.

Ms Horsburgh —Sure.

Senator HURLEY —Channel 9 might decide that they are going to get a 20 per cent producer offset in the next few years so they will drop their budget for in-house drama by 10 per cent.

Ms Horsburgh —Drop their budget for in-house drama?

Senator HURLEY —Yes.

Ms Horsburgh —That would be difficult due to the fact that budgets are tied to the points system. If we drop below a certain budget, we basically shoot ourselves in the foot because we do not get the amount of points. They are our compliance points, so we lose our licence if we do not meet that. So it is not logical for us. That is where the mixture comes in. Obviously we have to meet compliance but we are trying to meet compliance in a diverse range of Australian drama. We are hoping that we can do your great big Sea Patrols, which have a different kind of process.

Senator HURLEY —Mr Holmes, is that your experience as well?

Mr Holmes —I agree with Jo, but there is another way of looking at this, and that is that Australian drama production works pretty well in this country. Certainly that has been our experience at Seven. Putting aside the independent or the in-house production, if Aussie drama works we want more of it. We are now making a lot more than we are required to make. The only reason we are doing that is that viewers tip into it and obviously that is good for our ratings. If there is something that can encourage the Seven Network to make more drama, then it has to be a plus. It is not going to turn us away from those independents; we will still be looking, as I said in my first comment, to the idea. The more ideas we can get through the door, the more programs we will make—and any break is going to help.

CHAIR —Obviously you are all meeting the statutory requirements, but is the programming designed to do that and nothing else or are you in excess of the statutory requirements?

Mr Holmes —We are quite above it. But I go back to my last comment: you can make cheap product—but you have to bury its somewhere and therefore it is a complete waste of money—or you can make quality product. I do not mean that you have to put millions of dollars into it. In Australia we make very good programming at a very reasonable rate. That goes back to our history of making serials. We do a lot with our dollar in television. But I think we need to encourage the middle band—the series television. We started one last night and we are shooting a pilot as we speak—and we still have two very successful shows on air. But we do not stop there; we want more—again, because it is working for us. We will try and grab any idea that comes through and make it.

CHAIR —What is precluding any of the broadcasters at the moment from putting more locally produced programs on?

Ms Flynn —We are not saying that the legislation as it currently exists prevents that.

CHAIR —That is not the question. What is stopping you at the moment from putting more Australian programs on—whether it is high end or whatever? Is it cost?

Mr Holmes —It is the savage costs of drama production.

Ms Flynn —Costs.

Ms Horsburgh —How do you finance it?

CHAIR —I presume the argument from SPAA and others is that you will effectively renegotiate. If a production is worth X at the moment, then you will be paying X minus 20 per cent and that will be the end of the matter—you are meeting your statutory requirements, so there is no incentive to reinvest those savings in further production.

Ms Flynn —You still have to meet your points.

Ms Horsburgh —Yes, we still have to meet our points. As to the concept that we are just going to take 20 per cent, it is done on a project-by-project basis and how the rebate is used is something that is negotiated with the independent producer. Their level of equity is also part of those negotiations, and they are not shy in debating these deals. But what we are looking for is a flexible business process in dealing with independent producers. Again, as I said, all our productions are with independent producers.

CHAIR —Ms Flynn, there was an aside between you and Ms Horsburgh about the points. Can you elaborate on that?

Ms Flynn —Under the Australian content standards there is an incentive: if you have an independent production with a licence fee of $300,000—it says $300,000 here, but it has gone up since this was released—

Ms Rooney —It is $340,000.

Ms Flynn —then you get three points. But any other drama gets only 2.5 points. So if you have a set amount of points that you have to meet and there is an incentive for an independent production, then you are still going to have to meet the points requirement for the spend on the licence fee to get the three points.

Ms Horsburgh —You have to make more hours.

Ms Rooney —Seven has to make more hours of television to get the same amount of points as independent productions.

Ms Flynn —Because of their in-house—

Senator BERNARDI —If XYZ Production Pty Ltd comes to you with an idea for a drama or a series or something like that, and you say that you would like to see a pilot or whatever the case might be, do you then fund it in its entirety to be produced into a series, or do you give them an advance licence fee? How does it work? Do they have to go and raise money independently?

Ms Horsburgh —Every project is different. In the case of Sea Patrol, where the FFC is involved, we gave development money to the McElroys to develop the scripts and the concepts. The McElroys attempted to find overseas money. When that did not work, they were able to access the FFC miniseries guidelines. But they had to have a domestic buyer—which was us. We helped with the DG and we did about $1 million worth of development.

Senator BERNARDI —What was your development money? If it is commercial-in-confidence I do not need to know.

Ms Horsburgh —Across the series it was about $1 million.

CHAIR —You put $1 million into development of the series. You then became the buyer of right in it, but by any external measure it is still not related to a broadcaster, even though you had sunk $1 million into it to start with.

Ms Horsburgh —That is development. Networks sink $1 million in, in development.

CHAIR —But it is still an independent production even though you have funded that to $1 million?

Ms Rooney —We never get development money back unless it is—

Ms Horsburgh —We would cash flow about 80 per cent of that budget into the production and then get it back in various forms.

CHAIR —It just strikes me as unusual that you can fund 80 per cent of the initial development and it still be deemed an independent production. Thank you; you have clarified that for me and I appreciated it.

Senator WEBBER —I was trying to understand before—you have completely confused me now—about the point system.

Ms Flynn —I am having difficulty seeing you because of the window. The sun is coming in behind. I am sorry.

Senator WEBBER —It is not often I end up with a halo—in fact, this would have to be the one and only time!

CHAIR —We think you are an angel!

Senator WEBBER —You have not heard the question yet! I think all of us in this room are atypical television watchers in that we are hardly ever home so we do not get to watch anything. If I do not like reality television how much Australian content and what proportion of your Australian content is out there? It seems to me that there is not much independent production of reality television, unless I have completely misunderstood what is going on.

Ms Flynn —Southern Star produces Big Brother. Most of it is independently produced.

Senator WEBBER —Most of it is independently produced?

Ms Horsburgh —Yes. That is not drama; that is a separate thing.

Senator WEBBER —But it is Australian content?

Ms Flynn —It is Australian content that does not count to the drama points.

Senator WEBBER —Right. I am very easily confused.

Ms Flynn —It is very complex. In total, in relation to Australia, 70 per cent of broadcasters’ costs go to Australian content production. That amounted to $800 million last time we looked at these figures. That consists of news, current affairs, reality TV, drama, and sport of all the various types. But 70 per cent of our production costs are for local content.

We also have a 55 per cent quota rule, which means that 55 per cent of the hours that you broadcast must be Australian content. Then the drama subquota sits in underneath that. So for the Australian content standard, which I am happy to give you a copy of and to table—

Senator WEBBER —Will I understand it?

Ms Flynn —As someone who came into this without any prior knowledge in 2001, I would suggest that you would probably need to take time to sit down and go through it. It is quite complex and complicated, and it is very black-letter regulation.

Senator WEBBER —Senator Bernardi seems to understand it so perhaps I will talk to him.

Ms Flynn —I can provide those statistics for you on the actual spend but I seem to have lost track of them in this folder. Our broadcasting financial results should be out shortly from ACMA. We have to account for all of this to ACMA, so it is not that we are dreaming up the figures; these are the figures that we are licensed to provide to ACMA each year.

CHAIR —I have some very good news for you, Senator Webber. I actually have a copy of the Broadcasting Services (Australian Content) Standard 2005, which I am happy for you to chew over, over lunch.

Ms Horsburgh —I would like to make one comment on a concern by SPAA about the possibility that production will become Sydney-centric. One of the important issues to point out is that, for instance, at Network Nine we do not have one project in Sydney. They are in Queensland, Melbourne, WA—everywhere but poor Sydney. We are concerned because we do not have a production in Sydney. We feel that we need to do something about that because we do not feel that we are representing Sydney.

We go where the project takes us and also where the business deal enables us to produce it. Obviously, Sea Patrol worked for Queensland because the producers there got assistance from the PFTC and things like that. We go where the business takes us to enable us to make the drama. So we are not focused on Sydney. We are basically following the project.

CHAIR —It is a bit of horses for courses, presumably.

Ms Horsburgh —Yes.

CHAIR —You could not shoot Sea Patrol on Lake Wendouree in Ballarat, could you?

Ms Horsburgh —But we thought about it!

Ms Flynn —I am sure the senator would think that is a very good idea.

CHAIR —Particularly at the moment, because it is dry.

Ms Flynn —Could I also say on that point that Channel 10 does all its children’s production out of Queensland, and Big Brother of course has been produced up until now out of Queensland. So there is a very diverse slate of productions of Australian content and drama across all networks. I am not sure where Channel 7—

Mr Holmes —We are just based in Melbourne and Sydney, mainly because our programs are studio based and that is where our drama studios are.

CHAIR —We have now had completely equal time, for those who are keeping account of it.

Ms Horsburgh —Thank you very much.

CHAIR —Ms Horsburgh, Ms Flynn, Mr Holmes and Ms Rooney, thank you most sincerely for your attendance. It has been a very interesting hour and a half and will only get more interesting, I suspect, so thank you very much.

[12.56 pm]