ARCHIVED - Public Notice CRTC 2001-109

Public Notice CRTC 2001-109

Ottawa, 26 October 2001

Mandatory Order issued pursuant to subsection 12(2) of the Broadcasting Act concerning the operation of an unlicensed undertaking at Toronto, Ontario

Background

1.

Pursuant to Notice of Public Hearing CRTC 2001-8, the Commission called Mr. Jan Pachul to appear before it at a public hearing in the National Capital Region commencing 19 September 2001 so that it might "enquire into, hear and determine" whether a mandatory order should be issued requiring Mr. Pachul to cease and desist operating a broadcasting undertaking at the above location, or anywhere else in Canada, except in compliance with the Broadcasting Act (the Act).

2.

Mr. Pachul had applied for a low-power community-oriented television station on UHF Channel 15 to serve an area in the City of Toronto. The Commission, by majority vote, subsequently denied this application in Decision CRTC 2000-340 dated 21 August 2000.

3.

Following the denial of this application, the Commission received evidence via various press reports that Mr. Pachul was operating an unlicensed television station in Toronto. The Commission wrote a letter to Mr. Pachul on 2 October 2000 stating that, if he was broadcasting, he should cease and desist from doing so except in accordance with the Act. No reply was received. In December 2000, the Commission asked Industry Canada to monitor and determine if Mr. Pachul was operating a broadcasting undertaking in Toronto. In April 2001 Industry Canada provided the Commission with a monitoring report and videotape of sample programming. The report stated that Mr. Pachul "continues to operate an unlicensed TV broadcast station in Toronto." A second report was issued in June 2001 by Industry Canada which confirmed that the unlicensed broadcasting undertaking in Toronto continued to broadcast. In June 2001, the Commission wrote to Mr. Pachul indicating that it was contemplating holding a public hearing to determine whether a mandatory order should be issued. On 30 July 2001, the Commission issued Notice of Public Hearing CRTC 2001-8 calling Mr. Jan Pachul to a public hearing on 19 September 2001 in the National Capital Region.

4.

In an email message dated 20 August 2001, Mr. Pachul raised a number of preliminary matters, and the Commission replied on 28 August 2001.

5.

On 22 August 2001, Mr. Pachul sent another email message to the Commission stating that he objected to the late service on 22 August 2001 of comments by the Canadian Association of Broadcasters (CAB) and CTV Inc. The Commission replied on 23 August 2001, indicating that its staff had accepted these comments and the Commission confirmed its staff's actions. It further allowed Mr. Pachul until 4 September 2001 to reply to the comments, and he did so within the permitted time period.

6.

On 13 September 2001, Mr. Pachul filed an application with the Federal Court of Appeal for a judicial review asking for a stay of the public hearing and removal of the comments filed by the CAB and CTV. On 18 September 2001, he applied to the Court on an urgent basis, to stay the public hearing. On 18 September 2001, the Federal Court of Appeal issued a Direction, declining to treat the motion on an urgent basis.

The public hearing

7.

At the hearing, Mr. Pachul made opening statements to the Commission during which he stated: "You know the only reason why we went on the air is because we are greatly offended by what happened here in this [denial] decision." Mr. Pachul went on to say: "You know our main defence is a defence of necessity. If we didn't go on the air, we might as well declare bankrupt."

8.

Mr. Pachul was asked if he disputed the veracity of any of the statements on the record compiled by the Commission or relied on or disagreed with the comments which he had forwarded to the Commission. Mr. Pachul in effect, chose not to answer, stating "I stand mute." When asked whether a statement on his website (".Not Star Ray TV, although we have been broadcasting on channel 15 on and off since 1998, we vowed to defy the CRTC and have kept a regular broadcast schedule since September 2000"), was correct, Mr. Pachul answered in a similar fashion. At the end of his oral comments, Mr. Pachul filed a number of additional documents.

9.

During his opening statement Mr. Pachul also alleged that the Commission was biased. He stated, inter alia; "You know like there is compelling evidence that the CRTC has engaged in an ongoing pattern of improper behaviour against new entrance in the television broadcasting business and it's contrary to the public interest that the CRTC is mandated to protect. This evidence absolutely supports a reasonable apprehension or bias. You know I have no expectation whatsoever receiving a fair hearing based on this evidence."

10.

"And also, if you go look at my five-year history with the CRTC, it's been nothing but a history of contempt and malice. You know like the question I have whose airwaves are the Canadian airwaves? Are they just a handful of industry insiders that are allowed to engage in broadcasting activities or is the public actually somehow in that equation? It doesn't appear to be so."

11.

Presentations in support of Mr. Pachul were made by Mr. David Bachner and Mr. Paul Coulbeck. Mr. Bachner stated that the issuance of a mandatory order would not be in the public interest and that Star Ray TV offered programming not available elsewhere in Toronto. Mr. Coulbeck stated that the Commission's decision not to approve Star Ray TV's application for a licence had caused hardship to his community and anyone working in the station and "has hampered us in fulfilling our goals as a community station."

12.

Many of the comments forwarded to the Commission by Mr. Pachul and filed as part of the record of this proceeding acknowledge that Star Ray TV is broadcasting. When asked at the conclusion of the hearing what steps he would take to operate within the confines of the Act, Mr. Pachul replied that "maybe there is a middle ground, but so far I haven't seen any kind of compromise."

Conclusion

13.

The necessity to hold a licence or to be exempted from holding one is a fundamental aspect of the Act. From it flows the ability of the Commission to fulfil its mandate to carry out Parliament's broadcasting policy for Canada found in section 3 of the Act. To allow those not licensed or exempted to broadcast would subvert the integrity of the licensing process, the regulation of broadcasting, and the attendant duties and obligations that are placed on licensed broadcasters.

14.

On the basis of all the evidence available to it, including the statements of Mr. Pachul himself, both at the public hearing and on previous occasions as seen from the public record, statements found in the comments forwarded by Mr. Pachul and the reports made by Industry Canada, the Commission considers that Mr. Pachul, under the name Star Ray TV, has been carrying on a broadcasting undertaking without a licence in the City of Toronto.

15.

With regard to the allegation of bias, Mr. Pachul's allegations are to the effect that he disagrees with certain decisions that the Commission has made in the past, concerning himself and others. There was not any allegation that would cause the removal of any particular panel member and Mr. Pachul did not make any such request. The Commission finds that Mr. Pachul's arguments raise no basis on which to accept the allegation of bias.

Order

16.

The Commission therefore finds that Mr. Jan Pachul is carrying on a broadcasting undertaking without a licence or exemption from this Commission and, pursuant to section 12 of the Broadcasting Act, makes the following order:

Mr. Jan Pachul of the City of Toronto, is hereby ordered to cease and desist carrying on a broadcasting undertaking at Toronto, or anywhere else in Canada, except in compliance with the Broadcasting Act. This order to take effect on 15 November 2001.

The Commission will file this mandatory order with 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. According to the Federal Court Rules, anyone who disobeys an order of the Court may be found guilty of contempt of court.

Secretary General

This document is available in alternate format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca