ARCHIVED - Decision CRTC 2001-778
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Decision CRTC 2001-778Ottawa, 20 December 2001 Our File: 4732-085
Mr. Jan Pachul Dear Mr. Pachul: By an e-mail dated 26 November 2001 you appealed to the Commission from the decision found in Public Notice 2001-109, to issue a mandatory order against yourself to cease and desist carrying on a broadcasting undertaking. The Commission's decision on your appeal is set out below. The members of the panel that originally heard the matter, namely Chairperson Colville, Vice Chairperson Wylie and Commissioner McKendry, took no part in this appeal. Arguments raised in paragraphs 3-8In your appeal, you state that there is no due process to allow you to conform to the Broadcasting Act. There is, however, a course of action open to you to conform to the Broadcasting Act, and that is to cease broadcasting until you have been either licensed or exempted (section 32(1)). The Commission has indicated that applicants for licences for low-power television should wait until it has released a low-power television-licensing framework. A proposed policy should be issued shortly. Until a policy is released, you are in the same position as anyone else who wishes to use LPTV. Once the framework is issued, all applicants will be treated on equitable terms. Arguments raised in paragraphs 9-28In your letter you make certain allegations of bias. The newspaper articles you quote and the allegations you make do not, in our opinion, show that any particular Commission member who sat on the September 19, 2001 panel which heard this matter is biased against you. There is no evidence that each member did not bring an open mind to the hearing and did not decide upon the material contained in the record and presented at the hearing. The Commission therefore rejects your allegation that any of the members of the panel were biased. Your allegations and arguments seem to show that you do not agree with past Commission decisions and policies. The fact that a Commissioner has made decisions of which you disapprove, in our opinion, does not constitute bias. Individuals are free to challenge Commission policies and many have successfully done so in the past. The Commission has always listened to their arguments with an open mind. This has led, in some cases, to changes to and exemptions from those policies. Argument raised in paragraph 29For the same reasons as those set out above, the Commission rejects your allegations of bias against Commissioners Noël and Demers. Re paragraphs 30 and 39Your request under the Access to Information Act is being processed and you should have a reply shortly. Specifically, with regard to tapes, we draw your attention to pages (iv) and (v) which appear on the Agendas of public hearings. at page iv
and at page v
Re paragraphs 31-38 and 40In these paragraphs of your letter you make allegations that there were errors in the public hearing process. You state you have not received a satisfactory answer to your question of how one subpoenas witnesses. If, for any reason, you were not satisfied with the response, it was open to you to pursue the matter until you were satisfied. You state the evidence used against you by the Commission was all inadmissible hearsay. Hearsay evidence is proper before most administrative tribunals. These tribunals were created partly to avoid the more formal processes of the courts. You also state that the Commission called no witnesses at the public hearing. The evidence relied on by the Commission was all on the public record or came out at the hearing. This was all made available to you. In your letter you state that the number of errors and omissions in the transcript of your presentation renders it useless. In our opinion the errors you allege in the transcript are irrelevant. The errors you allege do not go to the heart of the issue, i.e., were you broadcasting without a licence, but only to speaking style. The Commission relies upon the transcript of the hearing made by a professional court reporter, rather than on your recollection of the hearing. You state that the Commission used statements found in the comments to the effect that you were broadcasting as evidence in support of the decision. The comments filed by outside parties contained clear statements that you were broadcasting. You were specifically asked at the hearing if you disputed the veracity of these statements. Your answer was "I stand mute" - see paragraphs 51-64 of the hearing transcript. Further, we should point out that all of what is contained in a comment is looked at by the Commission. Argument raised in paragraphs 41-48You argue that your type of broadcasting is not within federal jurisdiction. We would note that this is, in effect, an admission that you are broadcasting. Furthermore, based on numerous cases starting with Regulation and Control of Radio Communication in Canada [1932] 2 D.L.R. 81 (P.C.), radiocommunication and its subset, broadcasting, are a federal jurisdiction. On the basis of the above the Commission rejects your appeal and confirms the decision of the panel. Yours truly,
Ursula Menke PCDocs 27976 Date Modified: 2001-12-21 |
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