ARCHIVED -  Public Notice CRTC 1988-142

Public Notice

Ottawa, 2 September 1988

Public Notice CRTC 1988-142

A Policy with respect to Election Campaign Broadcasting

For related documents see: The Broadcasting Act; the radio, television and cable television regulations; Circular No. 334 "Political Broadcasting - Complaints re: free time and editorial time allocations" dated 4 June 1987; and Public Notice CRTC 1987-209 "Election Campaign Broadcasting" dated 23 September 1987.

In addition, see: The Canada Elections Act and the provincial election acts.

I. BACKGROUND

On 23 September l987, as part of a continuing review of its regulatory role, and following its detailed review of the radio, television and cable television regulations, the Commission sought public comment on election campaign broadcasting (Public Notice CRTC 1987-209).

The Public Notice posed questions on specific aspects of election campaign broadcasting; questions related to equitable time allocations, treatment of various types of elections, coverage, on-air personalities as candidates, and the responsibilities of rebroadcasting stations.

Some twenty-nine organizations and individuals submitted comments; 14 of the submissions were received from broadcast licensees and their associations, 8 from political interests (4 political parties, 1 constituency association, 1 Member of Parliament, and 2 former candidates), 5 individuals and 2 broadcast news reporter associations. It should be noted that no political party holding seats in the House of Commons or in any provincial legislature responded. The parties that did comment were The Libertarian Party, Le Parti Communiste du Québec, The Communist Party of Canada and the Christian Heritage Party. The Commission has considered all of the submissions in arriving at it conclusions.

In its approach, the Commission considers that it is desirable to vest in its individual licensees the widest possible responsibility for determining and achieving fair treatment of issues, candidates and parties during elections in their respective service areas. The purpose of this policy paper is to provide guidance to licensees in respect of this duty.

At this stage the Commission intends to apply this policy only to conventional, over-the-air AM and FM radio and television stations and network licensees, and to cable licensees who operate a cable community channel or a special programming channel.

II. THE REGULATORY AND HISTORICAL FRAMEWORK

In its Public Notice of 23 September 1987, the Comission set out the sections of the Broadcasting Act and regulations that govern election broadcasting, as well as the interpretations that have been applied to these in the past.

The following material is drawn from the principal related statutes, interpretations of these statutes, and policy statements.

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 a 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 as 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 99.13 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 permitted advertising 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.

These guidelines have been under review in the current process, and are the subject of part III of this public notice.

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.

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 by the Commission.

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. 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....

The Commission in this present notice continues to endorse these principles.

III. THE ADOPTED POLICY

A) The Underlying Rationale

Throughout the history of broadcasting in Canada, licensees, as part of their service to the public, have been required to cover elections. Moreover, where licensees have allocated paid or free campaign time, they have been required to do so in a manner that is equitable to all political parties and rival candidates.

The purpose of these requirements is to ensure the public's right to be informed of the issues involved so that it has sufficient knowledge to make an informed choice from among the various parties and candidates. This right is a quintessential one for the effective functioning of a democracy, particularly at election time. The broadcaster's obligation as a trustee of the public airwaves is seldom greater than it is in respect to this exercise of the most fundamental democratic freedom.

As the Commission noted in Circular No. 334:

It is the broadcaster's duty to ensure that the public has adequate knowledge of the issues surrounding an election and the position of the parties and candidates. The broadcaster does not enjoy the position of a benevolent censor who is able to give the public only what it "should" know. Nor is it the broadcaster's role to decide in advance which candidates are "worthy" of broadcast time.

From this right on the part of the public to have adequate knowledge to fulfill its obligations as an informed electorate, flows the obligation on the part of the broadcaster to provide equitable -- fair and just -- treatment of issues, candidates and parties. It should be noted that "equitable" does not necessarily mean "equal". But, generally, all candidates and parties are entitled to some coverage that will give them the opportunity to expose their ideas to the public.

The question of equitable treatment applies to parties and to candidates; to programs, advertisements and announcements; to federal, provincial and municipal elections, as well as to referenda. Equity also applies to the duration of broadcasts, to scheduling, to potential audience, to the choice of which electoral districts and offices to cover, to language of broadcast, to issue coverage and approach, to conditions under which an appearance may be made, and -- in the case of paid-time programming -- to price. It is to these aspects of equity that the following section addresses itself.

The Commission acknowledges that each licensee's situation is unique. The Commission has no firm rules to cover all aspects of election campaign broadcasting; to some extent it will have to deal with situations on a case-by-case basis.

B) The Specific Applications

In its Public Notice of 23 September 1987, the Commission proceeded by way of a number of questions. One means of clarifying its adopted approach to Election Campaign Broadcasting is to review each of these questions.

In the first question, the Commission asked whether it should require, by regulation, that licensees allocate a previously determined specified minimum amount of time to all parties and candidates; and, if so, if there should be separate minima for free and paid time or other types of programming? Or, it asked, should the present practice continue whereby licensees apply their own interpretation of "equitable". The question also asked, if an allocation of time is requested, how should such allocation be determined.

The Commission has concluded that, in light of the differences between the various types of elections and the differences in the communities served by Canadian broadcasters, it should not establish specific minimum time allocations either by regulation or policy. Rather, it will continue to require each licensee to make its own equitable allocation of time devoted to election campaign broadcasting, except in the case of federal elections where specific requirements for the allocation of time to registered parties are contained in the Canada Elections Act.

Licensees should 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 and election to election, depending on the number of ridings served by the station, the number of candidates and parties, their records in previous elections, and other factors. It is up to the individual licensees to choose the ridings and offices they intend to cover. However all parties and all candidates should be allocated a reasonable, although not necessarily equal, amount of time to expose their ideas to the public.

The Canada Elections Act sets out the factors to be applied in allocating paid and free time to registered parties in federal elections. These are: the percentage of seats held by each of the parties at the previous general election, the percentage of the popular vote received at the previous general election and the number of candidates endorsed by each of the registered parties at the previous general election expressed as a percentage of all candidates endorsed by all the registered parties.

These factors are mentioned here as possible criteria for establishing equitable time. There may be other factors that might also be taken into consideration in the allocation of time so as to ensure that all concerned receive equitable treatment.

Licensees might establish different criteria for federal, provincial and municipal elections given the differences in the characteristics of those elections. However, the objective of equity must apply in all cases.

In the second question, the Commission asked whether any requirement concerning equitable treatment should apply to free-time and to paid-time programs; to profiles and debates specifically, or news and public affairs programs generally, or to any combination of the above; or whether there should only be a "trigger" requirement for some of these categories: that is to say, 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?

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 under the editorial control of the licensee.

iv) Public Affairs - In-depth examinations of candidates and issues, profiles of candidates, debates, and 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.

If one party or candidate receives free time, all rival parties and candidates must be offered equitable free time.

Similarly, if paid advertising time is sold to any party or candidate, advertising time must be made available on an equitable basis to rival parties and candidates.

In the case of conflicts between requirements for equity with respect to paid advertising time and sold-out commercial schedules, it is the Commission's view that such conflicts should be resolved in favour of the electoral process and in accordance with the principle of equity.

Equity In News Coverage

The Commission agrees with the arguments put forward that news coverage should generally be left to the editorial judgement of the broadcast licensee.

However, Section 3 of the Broadcasting Act requires that the Canadian broadcasting system provide "... reasonable, balanced opportunity for the expression of differing views on matters of public concern, and the programming provided by each broadcaster should be of high standard ...". Licensees have an obligation under this section to ensure that their audiences are informed of the main issues and of the positions of all candidates and registered parties on those issues.

Equity In Public Affairs Programming

Section 3 of the Broadcasting Act must also be applied when presenting public affairs programs, such as party or candidate profiles, features on certain issues or panel discussions.

In the case of so-called "debates", it may be impractical to include all rival parties or candidates in one program. However, if this type of broadcast takes place, all parties and candidates should be accommodated, even if doing so requires that more than one program be broadcast.

The second question also asked whether equitable time requirements should apply to each program broadcast, to each series of programs, to each type of programming (i.e., free time, paid time, etc.) or to the overall election campaign programming of the station.

The Commission's policy until now has been to consider all of the programming broadcast by a station when determining if its election coverage programming has met the equitable treatment requirement. Thus, for example, a public affairs program might 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 remainder of the station's schedule. Similarly, a licensee could favour one party or candidate by making free time available to one, and only public affairs time to other(s).

The Commission has concluded that equity requirements will apply within each of the categories of paid-time, free time, and (to the extent that they cover debates and profiles) news and public affairs programs.

Licensees who program in more than one language should take into consideration that a political broadcast in one language cannot be construed as balancing a political broadcast in another language.

In the third question, the Commission asked whether equitable treatment in election coverage should be based on the overall time period from the start of the electoral campaign to election day, or whether it should be assessed on the basis of the number of parties or candidates running at any given time during the campaign period.

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 campaign period to commence two months prior to the known election date).

Not all candidates are nominated at the same time; some, for strategic or other reasons, may not be nominated until well into a campaign. In the Commission's view, there is no obligation on the part of licensees to compensate late entrants for time previously afforded other candidates following the election's call. (This was also the unanimous position of those who submitted comments.) Late-entry candidates should receive equitable coverage from the time they enter the campaign.

In the fourth question, the Commission asked whether federal, provincial and municipal elections should be treated differently, and if so, how.

In considering the application of the broadcasting regulations dealing with political advertising during election 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.

Because of these differences in the nature of the elections at the different levels, it is necessary to treat them in a different manner. However, the same basic requirement, to treat all parties and candidates equitably, applies.

In the fifth question, the Commission asked if there should be limits to the number of electoral districts for which any broadcaster is expected to provide coverage, and what those limits should be: for example, in terms of electoral ridings, municipalities, or the station's coverage contours.

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

In the Commission's view the decision should be made by the licensee, in consideration of three principal factors: the station's service area (i.e., the area it is licensed or committed to serve), its signal coverage area, and the practical aspect based on the number of electoral districts and candidates.

The fifth question also asked whether, in the case of municipal elections, the offices to which the requirements apply would be limited to those of the members of the council of a municipal corporation.

Municipal elections can involve a large number of offices and candidates, making it difficult for some stations covering many electoral districts to deal with all of the candidates for the many offices involved.

The Commission considers that licensees are in the best position to judge how they should respond to the needs of the public in the communities they have been licensed to serve.

In the sixth question, the Commission asked whether on-air personalities (even those appearing solely as commercial announcers, whether on radio or television) who are also candidates should be allowed to continue broadcasting, on condition that they not refer to the campaign on air during their work period and that opposing candidates agree.

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

The Commission remains persuaded that on-air personalities, whether they are employed on radio or television or community programming channels of cable systems, even if their exposure is solely in the role of commercial announcer, have an unfair advantage over their opponents.

Accordingly, henceforth the licensee has the responsibility to ensure that such candidates are removed from their on-air duties during the election campaign period as defined in the regulations (the Radio Regulations, 1986, the Television Broadcasting Regulations, 1987 and the Cable Television Regulations, 1986) or from the date their candidacies are announced, whichever is later. Offering similar on-air opportunity to an on-air candidate's opponents will no longer be an option.

In its seventh question, the Commission asked how it should treat rebroadcasting undertakings: that is to say, those which rebroadcast all or substantially all of the programming of a "mother" station.

In this regard the Commission considers that where a station rebroadcasts programming from a mother station, election campaign information needs of the public in the extended coverage area should be accommodated in the programming of the mother station to the extent possible.

Some stations that rebroadcast a substantial portion of the programming of a "mother" station, nonetheless broadcast some hours of programming originated in the community the station has been licensed to serve. In these situations, the rebroadcasting undertaking would be expected to take the required initiatives to deliver election campaign information specifically relevant to its public.

The Commission considers that the rules that apply to conventional stations should also apply to local programming originated by rebroadcasting stations.

IV. BLACK-OUT

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 subsection 28 (1) of the Act.

The Commission wishes to underline that in examining the matter of election campaign broadcasting, it has been mindful not only of the need to ensure the public's right to be informed on matters of public concern, but also of the need to protect the freedom of expression of broadcasters and candidates alike.

It has been the Commission's aim to arrive at the minimum rules required to enable broadcasters to meet the Broadcasting Act's requirement for balance, and to ensure this balance in the public interest.

Fernand Bélisle Secretary-General