ARCHIVED -  Public Notice CRTC 1987-209

Public Notice

Ottawa, 23 September 1987

Public Notice CRTC 1987-209

Election Campaign Broadcasting

BACKGROUND

As part of its continuing review of its regulatory role, and following a detailed review of the Radio, Television and Cable regulations, the Commission now seeks comment on election campaign broadcasting. The purpose of this review is to seek solutions to problems that have arisen in the past, and to identify and eliminate any policies and procedures dealing with election campaign broadcasting that may no longer be appropriate.

Throughout the history of broadcasting in Canada, licensees, as part of their service to the public, have been required to cover elections and to allocate election campaign time "equitably" to all political parties and rival candidates.

The purpose of these requirements is to ensure that the public is informed of the issues involved so that it has sufficient knowledge to make an informed choice from among the various parties and candidates.

Circumstances have changed since the present regulatory requirements for broadcasting were established almost six decades ago. Broadcasting stations have increased in type, number and reach; political parties and candidates have a greater selection of media for campaign purposes.

While the broadcast rules for equitable coverage have remained the same for the most part, that regarding the allocation of equitable time for parties in federal elections has been affected by the Canada Elections Act. There are also provincial election laws which restrict election campaign time, scheduling and/or expenses.

CURRENT LEGISLATION AND POLICIES

A general overview of regulatory requirements and guidelines for election coverage by broadcasters is set out below.

1. The Broadcasting Act

Subsection 3(d) of the Act declares that

the programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable balanced opportunity for the expression of differing views on matters of public concern ... (emphasis added)

Paragraph 16 (1)(b) of the Act gives the Commission the power to make regulations:

(i) respecting standards of programs and the allocation of broadcasting time for the purpose of giving effect to paragraph 3 (d),

(ii) respecting the character of advertising and the amount of time that may be devoted to advertising,

(iii) respecting the proportion of time that may be devoted to the broadcasting of programs, advertisements or announcements of a partisan political character and the assignment of such time on an equitable basis to political parties and candidates,

(iv) respecting the use of dramatization in programs, advertisements or announcements of a partisan political character...

Section 28 of the Act provides for a "black-out":

(1) No broadcaster shall broadcast, and no licensee of a broadcasting receiving undertaking shall receive a broadcast of a program, advertisement or announcement of a partisan character in relation to

a) a referendum, or

b) except as provided by any law in force in a province (emphasis added) an election of member of the legislature of that province or the council of a municipal corporation in that province that is being held or is to be held within the area normally served by the broadcasting undertaking of the broadcaster or such licensee, on the day of any such referendum or election or on the one day immediately preceding the day of any such referendum or election.

2. The Broadcasting Regulations The Radio Regulations, 1986 and Television Broadcasting Regulations, 1987 (Sections 6 and 8 respectively) read follows:

"Political Broadcasts"

During an election period, a licensee shall allocate time for the broadcasting of programs, advertisements or announcements of a partisan political character on an equitable basis to all accredited political parties and rival candidates represented in the election or referendum."

"'Election period' means

 (a) in the case of a federal or provincial election or of a federal, provincial or municipal referendum, the period beginning on the date of the announcement of the election or referendum and ending on the date the election or referendum is held, or

 (b) in the case of a municipal election, the period beginning two months before the date of the election and ending on the date the election is held; (période électorale)"

3. The Canada Elections Act

Section 99 of the Canada Elections Act requires that, during all federal general elections, all broadcasting stations make available for use by registered political parties 6.5 hours of time, in prime time, during the 28-day campaign period, and sets out a formula by which this time is divided.

It also requires networks to provide an unspecified amount of free time to political parties.

4. Interpretations (Guidelines and Circulars)

The Commission issues guidelines at the time of federal and provincial elections to remind licensees of the legislative requirements, and to provide interpretations of the Act and Regulations.

Found in those guidelines are the following statements:

 Radio and television station licensees shall log as advertising material any paid broadcast of a partisan political character which, including the identification of the sponsor and the party, if any, is two (2) minutes or less in duration.

 Licensees are not obligated to offer free time for broadcasts of a partisan political character to political parties and candidates.

 The allocation of time among political parties and candidates for broadcasts of a partisan political character is to be arranged between political parties and candidates and licensees on an equitable basis both qualitatively and quantitatively.

 For the purposes of [the relevant sections of the Act and Regulations] in reviewing the allocation of time, the Commission will take into account all broadcasts in which political partisans may have appeared.

 Any broadcasting personality who is a candidate for election and continues his or her broadcasting during the campaign is considered by the Commission to be receiving an inequitable advantage unless the licensee of the broadcasting undertaking on which such candidate appears agrees to provide similar opportunity to the candidate's opponents. If similar facilities are not provided, the Commission considers that such candidates receive publicity that is not available to their opponents and therefore requires thatthese candidates discontinuetheir broadcasting activitiesuntil after the election.

More recently, the Commission, in circular letter No. 334 dated 4 June 1987, and titled "Political Broadcasting -- Complaints re: free time and editorial time allocations", dealt with complaints about broadcasting stations and their allocation of time.

The Commission's purpose in issuing that circular was to provide guidance to all licensees who face the duty to allocate time to rival political parties and candidates during provincial elections. It stated that:

 Once a licensee chooses to give free time, it must allocate some time to all political parties which are duly registered under the applicable legislation ...

5. Other material

In addition to the framework provided by the two relevant Acts and the regulations with respect to political broadcasting, there are various policy statements that the Commission has issued from time to time on the more general subject of balance in controversial programming. Those who submit comments may find them of some relevance to the topic at hand.

They are:

(a) Report (9 July 1970) on the CBC public affairs program "Air of Death";

(b) Public Announcement (12 January 1976) regarding broadcasts on CFCF, Montreal, regarding the Quebec language legislation, referred to as Bill 22; and

(c) Public Announcement (24 February 1977) reporting on the Commission's findings related to CFCF's broadcasts of programming related to Bill 22.

These documents set out the following principles:

(a) CRTC regulation, as a general rule, should not constrain or inhibit the ways and means of presenting controversial issues.

(b) Broadcasters have a responsibility to become involved in controversial issues of public concern.

(c) Broadcasters should devote a reasonable amount of air time to the coverage of controversial public issues and should provide an opportunity for the presentation of differing points of view.

(d) The public, through the presentation by broadcasters of the various points of view in a fair and objective way, should be placed in a position to make its own informed judgement on controversial issues.

(e) It is for the broadcaster in the first instance to determine what a reasonable balanced opportunity for the expression of differing views, subject to review the Commission.

Those who plan to submit comments to the Commission are urged to review these documents. These may be obtained by writing to the Commission at the address given at the end of this notice.

CALL FOR COMMENT

As indicated above, the purpose of this public announcement is to seek comment from interested parties on matters concerning partisan political broadcasting during election campaigns. What follows in this section are some problematic aspects of election campaign broadcasting and certain questions relating to them. However, the comments to be submitted need not be limited to answering these specific questions or the issues they address.

ISSUES

The central issue is that of equitable - that is, fair and just - treatment. It should be noted that "equitable" does not necessarily mean "equal". The question of equitable treatment applies both to parties and candidates; to programs, advertisements or announcements; to federal, provincial and municipal elections, as well as referenda. It can also apply to the duration of broadcasts, to scheduling, to issue coverage and approach, to conditions under which an appearance may be made, and -- in the case of paid-time programming -- to price.

The Commission's current guidelines indicate that each broadcast licensee must treat all parties and candidates equitably over the full campaign period, taking into account all types of programs broadcast. Only in federal elections are broadcast licensees required by law to make time available for registered parties (see reference to Canada Elections Act above).

In all other cases, licensees have been advised to develop a suitable rationale for their allocations of political time based on their knowledge of their communities. Circumstances, of course, vary from licensee to licensee depending on the number of candidates and parties, their records in previous elections, and other factors.

To be adopted, any regulatory scheme should be clear, allowing both broadcasters and political aspirants to know their rights and duties easily. Moreover, it should not be so onerous as to discourage licensees from providing comprehensive election coverage and opinion.

SPECIFIC QUESTIONS

1. It has been argued that the Commission should require broadcasters to make equal time available to all parties and candidates. Another view suggests that while equal time to all might be unfair, all candidates should be accorded at least some air-time to inform the public of their platforms. Others hold that some candidates should not be offered any time at all.

Question 1a: Should the Commission require, by regulation, that all licensees allocate a previously determined specified minimum amount of time to all parties and candidates; if so, should there be separate minima for free and paid time or other types of programming? How should conflicts between paid-time requirements and sold-out commercial schedules be resolved?

Or, should the Commission continue its current practice of allowing licensees to apply in the first instance their own interpretation of "equitable"?

Question 1b: If minimum requirements are deemed necessary or desirable, what measures should be introduced to provide clearer quantitative guidelines to licensees? How should any specific amounts involved be determined? Would formulae be appropriate?

2. Political campaign broadcasts generally fall into four categories:

i) Paid time - time bought and paid for by, or on behalf of parties or candidates or advocacy groups, and largely under the editorial control of the advertiser.

ii) Free time - time given free of charge by the licensee to the party or candidate, and largely under the editorial control of the party or candidate.

iii) News - Coverage of the campaign by the licensee's news department, and largely under the editorial control of the licensee.

iv) Public Affairs - In-depth examinations of candidates and issues, profiles of candidates, "debates", - under the editorial control of the licensee.

There may be some "blurring" of the latter two categories, given that for example, they may be part of a station's "news package" and may involve the same station personnel.

Question 2a: With respect to types of program, should a requirement concerning equitable treatment apply to free-time and to paid-time programs? Should it apply specifically to profiles and debates, or news and public affairs programs generally, or to any combination of the above? Should there be only a "trigger" requirement for some of these categories? For example, if one or some candidates or parties are represented in any of the above program categories, should all parties and candidates be given the same opportunity?

The Commission's current policy is to look at all the programming broadcast by a station when determining if it has been equitable in its election coverage. Thus, for example, a public affairs program could be balanced by a free-time program. Some have argued that this is unfair because viewers may tune only to a specific public affairs program and not to the rest of what a station broadcasts. Similarly, a licensee could favour one party or candidate by making free time available to the one, and only public affairs time to the other(s).

Question 2b: With respect to the cumulative impact of exposure, should equitable time requirements apply to each program broadcast? To each series of programs? Should it apply to each type of programming (i.e., free time, paid time, etc.) or should it apply to the overall election campaign programming of the station?

3. The equitable time requirement is triggered at the later of (a) the date a candidate is nominated or (b) the date on which an election is called (for municipal elections the Commission deems the election to have been called two months prior to the known election date). However, not all candidates are nominated at the same time; some, for strategic or other reasons, may not be nominated until well into a campaign.

It may be that during the first part of a campaign two candidates could be running, but that later others might enter. Should these late-entry candidates receive equitable coverage from the time they enter the campaign, or should they be given extra time to compensate for the time previously afforded other candidates?

Question 3: Should equitable treatment in election coverage be based on the time period from the start of the electoral campaign to election day? Should it be assessed on the basis of the number of parties or candidates running at any given time during the campaign period?

4. In considering the application of the broadcasting regulations dealing with political advertising during electoral campaigns to the three levels of government, it should be noted that there are different circumstances applicable to each level. For instance, political party advertising in federal elections is regulated by the Canada Elections Act; for most municipal elections, there are often no political parties involved.

Question 4: Should federal, provincial and municipal elections be treated differently? If so, how?

5. For some licensees the provision of equitable coverage to all the candidates running for office in all the electoral districts reached by the station could amount to an unwieldy proposition.

Question 5a: Should there be limits to the number of electoral districts for which any broadcaster is expected to provide coverage? What should those limits be, for example, in terms of electoral ridings, municipalities, or the station's coverage contours?

Municipal elections can involve a large number of offices and candidates.

Question 5b: Should, in the case of municipal elections, the offices to which the requirements apply be limited to those of the members of the council of a municipal corporation?

6. In its interpretation of existing regulations, the Commission has stated that an on-air personality who is a candidate for elected office is considered to be receiving an inequitable advantage unless the broadcast licensee agrees to provide similar opportunity to the candidate's opponents. If similar opportunity is not thus provided, the candidate who is an on-air personality is required to discontinue broadcasting activities until after the election. In most instances, the person in question is removed from the air.

Question 6a: Should the on-air personalities/candidates be allowed to continue broadcasting on the condition that they not refer to the campaign on air during the work period and that opposing candidates agree?

Apart from those persons who receive exposure as DJs, newsreaders, hosts, etc., and often are in a position to make their personal views known on-air, there are others whose livelihood from broadcasting derives from announcing commercial messages.

Question 6b: Should persons who appear on air solely as announcers in commercial messages be considered "on-air personalities" for purposes of this policy?

It has been suggested that audiences are more likely to recognize a spokesperson who is seen on television than one who is heard on radio.

Question 6c: Should the rules with respect to on-air personalities be the same for radio and television?

For the present purposes, the Commission would prefer that comments address only over-the-air broadcasting by AM, FM and television undertakings and the community channel of cable undertakings licensed by the Commission, including those which rebroadcast all or substantially all of the programming of a "mother" station.

Question 7a: How should the Commission treat rebroadcasting undertakings? (Note: a full rebroadcasting station is not a "station" in the Regulations.)

Some stations that are essentially rebroadcasting stations do broadcast some hours of programming originated in the community the station has been licensed to serve.

Question 7b: Should any rules developed for conventional stations also apply to local programming originated by rebroadcasting stations?

The above outlines some of the issues identified by the Commission with respect to election campaign broadcasting. There may be others that any interested party may wish to bring to the Commission's attention.

During the past year, the Commission has approached the Government to seek an amendment to the Broadcasting Act to allow licensees to broadcast programs of news and public affairs during what is now the black-out period by virtue of Section 28 (1) of the Act.

The Commission wishes to stress that in examining this important aspect of Canadian broadcasting, it is mindful of the need to protect the freedom of expression of broadcasters and candidates alike. At the same time it wishes to ensure the public's right to be informed on matters of public concern. It is the broadcasters' obligation to provide equitable coverage under the balance requirements of the Broadcasting Act. It is the Commission's aim to arrive at the minimum rules required to ensure this balance in the public interest.

Comments must be submitted in writing by 13 November 1987, to the Secretary General, CRTC, Ottawa, Ontario, K1A 0N2

Fernand Bélisle Secretary General