ARCHIVED -  Decision CRTC 96-735

Decision

Ottawa, 7 November 1996

Decision CRTC 96-735

La Coopérative des Montagnes ltée

Edmundston, New Brunswick - 199522699

Licence Renewal; Issuance of a Mandatory Order

Following a Public Hearing held in Québec beginning on 9 July 1996, the Commission renews the licence for Type B community radio programming undertaking CFAI-FM Edmundston, from 1 January 1997 to 31 August 1998, subject to conditions in effect under the current licence, as well as to those conditions specified in this decision and in the licence to be issued. This short-term licence renewal will enable the Commission to review the licensee's performance at an early date in view of the serious concerns discussed in this decision.

The Commission called La Coopérative des Montagnes ltée to appear at the July 1996 hearing to discuss its apparent non-compliance with subsection 2.2(3) of the Radio Regulations, 1986 (the regulations) concerning the broadcast of Canadian musical selections in category 3 (Traditional and Special Interest), and with its condition of licence concerning the number of hours of category 3 music to be broadcast. In Notice of Public Hearing CRTC 1996-5 dated 10 May 1996, the Commission advised the licensee that it would be expected to show cause at the hearing why the Commission should not issue a mandatory order requiring the licensee to comply with the regulations as well as with the condition of its licence pertaining to category 3 music.

This is the second short-term licence renewal decision since the licensee went on the air in 1991, arising from its non-compliance with the regulations and the commitments set out in its Promise of Performance. In Decision CRTC 93-164, CFAI-FM's licence was renewed for three years only in light of the licensee's failure to comply with the logger tape provisions of the regulations, and with its conditions of licence relating to French-language vocal music and category 3 music.

During the current licence term, the Commission requested the Iicensee to submit the logger tapes and related documentation for the programming broadcast during the week of 27 August to 2 September 1995. Analysis of the programming by Commission staff revealed that the Iicensee had broadcast only 7.3% Canadian musical selections from category 3 instead of the minimum of 10% required by regulation, and had devoted only 6.1% of its overall music programming to category 3 music instead of the minimum level of 6.6% that it had committed to provide as a condition of licence in its Promise of Performance. The Iicensee is thus once again in non-compliance.

On 21 December 1995, the Commission wrote to the Iicensee requesting it to comment on the above instances of non-compliance, and directing it to correct the procedures it follows in maintaining music lists. The Commission also noted that the one-hour program "Réveil classic" broadcast on the morning of 27 August had been repeated for three hours and thirty minutes. In a letter dated 16 January 1995, the licensee addressed the matter of the 7.3% Canadian musical selections from category 3, advising the Commission that it had cautioned the program hosts that they would be monitored very carefully to ensure that the level of 10% is maintained. It also indicated that it would schedule new category 3 programs to raise the level of category 3 music to at least 8% of the station's overall music programming.

At the hearing, the Iicensee explained that the volunteer responsible for the broadcast of "Réveil classic" had left the studio without notice, and that this had resulted in the program playing continuously for three hours and thirty minutes. It added that [TRANSLATION]:

 ...when the midday volunteer arrived at the station to prepare his program, he realized there was something wrong and immediately stopped the recorded program and replaced it with category 2 music for the last half-hour of the program .... This sudden change in the program format caused a 30-minute reduction in category 3 music, which contributed to the station's being in a state of non-compliance .... As the pre-recorded program "Réveil classic" included a high proportion of foreign content and was repeated over three and a half hours, the Canadian content of category 3
music was considerably diminished.

On analysis and verification of the music list, Commission staff noted that several Canadian musical selections from categories 2 and 3 had not been logged, and that some musical selections broadcast were different from those appearing on the music list. At the hearing the licensee explained that this was due mainly to the [TRANSLATION] "transcription of the log sheets which, in certain specific cases, were illegible". It added that the volunteers involved have since been advised [TRANSLATION] "to be more careful when transcribing log sheets". The Commission reminds the Iicensee that music lists must be maintained in compliance with paragraph 9(3)(b) of the regulations at all times and in all respects.

The licence renewal application included a request to amend the licensee's condition of licence relating to the broadcast of category 3 musical selections to reduce the percentage of selections it broadcasts from 6.6% to 4%. At the hearing the Iicensee explained that it was proposing to reduce these levels essentially to provide a measure of flexibility and to ensure that it could comply with the relevant provision of its Promise of Performance. As justification for the proposed amendment, it also noted the difficulties it has experienced in recruiting volunteer workers who like special interest music.

Having considered the application, the Commission is of the view that the licensee's circumstances do not warrant a departure from its long-standing practice of denying all licence amendment applications filed by Iicensees who are in a state of non-compliance; it accordingly denies the Iicensee's application for licence amendment. The Commission notes that, in its presentation, the Iicensee indicated that it is exceeding the requirement of its condition of licence relating to the level of category 3 musical selections.

The Commission emphasizes that, although this community station is staffed in large part by volunteers, this in no way justifies the licensee's failure to comply with the regulations. Community station Iicensees are ultimately responsible for their stations' performance, and the onus is on them to put in place effective mechanisms and provide the training required to ensure compliance at all times with the regulations and their conditions of licence.

The Commission invites the Iicensee to consult it on any question or concern regarding Commission regulations and policies or the conditions of licence.

Having considered the licensee's explanations at the hearing for its failure to comply with the regulatory requirements and its condition of licence relating to category 3 music during the licence term ending 31 August 1996, the Commission considers that the licensee has not shown cause why the Commission should not issue a mandatory order. Consequently, the Commission has decided to issue Mandatory Order 1996-4 set out in the appendix to this decision. This mandatory order shall remain in effect throughout the new licence term.

The Commission will file a certified copy of this mandatory order with the registrar of the Federal Court. As set out in subsection 13(1) of the Broadcasting Act, the Commission's mandatory order will then become an order of the Federal Court, and will be enforceable in the same manner as an order of the Court.

If, at any time, the licensee should fail to comply with the conditions of its licence mentioned in the Mandatory Order appended to this decision, the Commission would provide evidence of such failure to the Federal Court. La Coopérative des Montagnes ltée would then be required to appear before the Federal Court on a charge of contempt of court. If the licensee were found guilty, it would be found in contempt of court and liable to a fine as provided for by the Federal Court Rules.

While granting CFAI-FM another short-term renewal, the Commission emphasizes that it may have recourse to additional measures in the event of any future non-compliance with the regulations or conditions of licence, including suspension, non-renewal or revocation of the licence.

The Commission notes that during the new licence term, the licensee will devote 6.6% or more of its overall musical programming to material from content category 3 (Traditional and Special Interest).

It is a condition of licence that the licensee broadcast no more than 6 minutes of advertising in every hour of broadcast, and that it broadcast no more than an average of 4 minutes of advertising for every hour of broadcast up to a total of 504 minutes of advertising per week, in accordance with the community radio policy for Type B stations.

In Public Notice CRTC 1992-59 dated 1 September 1992 and entitled "Implementation of an Employment Equity Policy", the Commission announced that the employment equity practices of broadcasters would be subject to examination by the Commission. It considers that community radio stations should be particularly sensitive to this issue in order to reflect fully the communities they serve. It encourages the licensee to consider employment equity issues in its hiring practices and in all other aspects of its management of human resources.

The Commission acknowledges the intervention submitted by the Alliance des radios communautaires du Canada inc. in support of this licence renewal.

This decision is to be appended to the licence.

Allan J. Darling
Secretary General

APPENDIX TO DECISION CRTC 96-735/ANNEXE À LA DÉCISION CRTC 96-735

Mandatory Order 1996-4

La Coopérative des Montagnes ltée, the licensee of CFAI-FM Edmundston, is hereby ordered, pursuant to subsection 12(2) of the Broadcasting Act, to comply, at all times during the term of the licence granted in Decision CRTC 96-735 dated 7 November 1996, with the following:

·  The provisions of subsection 2.2(3) of the Radio Regulations, 1986 relating to musical selections from content category 3 as set out below:

 Subject to subsection (6) except as otherwise provided pursuant to a condition of its licence, an A.M. or F.M. licensee shall, each broadcast week, devote 30 per cent or more of the licensee's musical selections from content category 2 and 10 per cent or more of the licensee's musical selections from content category 3 to Canadian selections and schedule those selections in a reasonable manner throughout each broadcast day.

·  The licensee shall, each broadcast week, devote 6.6 per cent or more of its musical programming to selections from content category 3 (Traditional and Special Interest).