ARCHIVED -  Public Notice CRTC 1988-213

Public Notice

Ottawa, 23 December 1988

Public Notice CRTC 1988-213

POLICY REGARDING OPEN-LINE PROGRAMMING

Related Documents: Public Notices CRTC 1985-236 dated 4 November 1985, 1987-196 dated 1 September 1987, 1988-121 dated 29 July 1988; Decisions CRTC 88-887 dated 23 December 1988 and 88-888 dated 23 December 1988.

I. INTRODUCTION

Since October 1986, the Commission has received 134 written complaints concerning open-line programs. These complaints involve 35 radio licensees, eight television licensees and four cable television licensees.

Since 1985, there have been three incidents involving racially offensive remarks on open-line programs that have been serious enough for the Commission to censure the licensees concerned or to institute a prosecution in the courts:

1. In Public Notice CRTC 1985-236, CKNW New Westminster, was censured by the Commission for racially offensive remarks concerning Native people broadcast in April 1985.

2. In Public Notice CRTC 1987-196, CJRN Niagara Falls, was censured by the Commission for racially offensive remarks concerning Native people broadcast in March and April 1987.

 In the spring of 1988, the Commission heard an application to renew the licence of CJRN Niagara Falls. Several interventions were filed with the Commission with respect to the renewal of CJRN's licence, objecting to the licensee's behaviour in connection with the incidents referred to above.

 Subsequently, the Niagara Regional Native Centre launched a private prosecution under the Broadcasting Act for breach of paragraph 3(b) of the Radio Regulations, 1986. In October 1988, CJRN pleaded guilty and was fined $5,000. In Decision CRTC 88-887, of today's date, the Commission renewed the licence of CJRN for 18 months, to 30 June 1990.

3. In a prosecution initiated by the Attorney General of Canada at the request of the Commission, Fundy Broadcasting Co. Ltd. (Fundy), licensee of CFBC Saint John, pleaded guilty and was fined $5,000 for abusive comments against Blacks and Jews broadcast in November 1987.

In the case of a fourth radio station, CHRC Quebec City, a number of complaints had been received with respect to open-line programs aired by the station during its previous licence term. These were mostly in relation to programming hosted by André Arthur. A licence renewal application for CHRC was heard in the spring of 1988 and, in Decision CRTC 88-888, of today's date, the Commission renewed the station's licence for 20 months, to 31 August 1990.

In light of the situations described above, the Commission decided to review the issue of open-line programming. On 29 July 1988, as part of this review, the Commission issued Public Notice CRTC 1988-121 which called for comments on a set of proposed guidelines for open-line programs. This document presents the background to the proposed guidelines, a summary of the comments received in response to the Public Notice and the Commission's findings in respect thereof.

II. REQUIREMENTS REGARDING OPEN-LINE PROGRAMMING

The proposed guidelines for open-line programs were developed to help broadcasters, including cable operators, to understand the requirements with respect to open-line programs as set out in regulations and the Broadcasting Act, and to encourage the development of mechanisms to ensure that those requirements are met. The guidelines were based on some of the written and unwritten rules and procedures already followed in the responsible conduct of the vast majority of open-line programs.

Paragraph 3(c) of the Act states: "all persons licensed to carry on broadcasting undertakings have a responsibility for programs they broadcast, but the right to freedom of expression and the right of persons to receive programs, subject only to generally applicable statutes and regulations, is unquestioned".

A licensee is responsible for the actions of its employees, including open-line hosts, producers and programmers. A licensee is also responsible for comments made by guests or callers during open-line programs.

Outlined below are the requirements that currently exist for licensees with respect to the conduct of open-line programs. These pertain to abusive comments, balance and high standards in programming.

(i) Abusive Comment

Paragraph 3(b) of the Radio Regulations, 1986 states that a licensee shall not broadcast "any abusive comment that, when taken in context, tends or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability". Likewise, paragraph 5(1)(b) of the Television Broadcasting Regulations, 1987 prohibits abusive comment or "abusive pictorial representation".

(ii) Balance

Paragraph 3(d) of the Act states, in part, that "the programming provided by the Canadian broadcasting system ... should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern...."

The Commission, in a number of pronouncements, has encouraged licensees to discuss a wide variety of issues in their programming, including matters of public concern. It considered that the public, through exposure to various points of view on such issues, should be in a better position to reach informed opinions on such matters.

The Commission has, on such occasions, required that balance in the broadcasting system be maintained in the following manner:

a) Each undertaking must comply with the requirement of the Act regarding balance in its own programming.

b) Not all programming need be balanced, only that relating to matters of public concern.

c) In general, balance need not be attained in each program or series of programs, but rather in the overall programming offered by each undertaking over a reasonable period of time.

d) To attain balance, equal time need not necessarily be given for each point of view. Rather, it is expected that in the programming offered by an undertaking, a variety of points of view will be made available to a reasonably consistent viewer or listener over a reasonable period of time.

The Commission has always considered that it is the licensee's responsibility to decide whether an issue is a matter of public concern and to determine the manner in which balance is to be achieved. However, the Commission has also made it clear that it may review a licensee's handling of such a matter, in response to a complaint or otherwise.

(iii) High Standards

Paragraph 3(d) of the Act also states that: "... the programming provided by each broadcaster should be of high standard...."

The Commission considers gratuitous personal attacks on individuals or groups, unresearched or inaccurate reporting and unprofessional on-air behaviour as examples of failure to meet the high programming standards required of each licensee.

III. COMMENTS RECEIVED IN RESPONSE TO PUBLIC NOTICE CRTC 1988-121

The Commission received 560 comments in response to Public Notice CRTC 1988-121. Eight industry associations submitted their views, including the Canadian Association of Broadcasters (CAB), the Canadian Cable Television Association (CCTA), the Association Canadienne de la Radio et de la Télévision de Langue Française Inc., the Central Canada Broadcasters' Association, the British Columbia Association of Broadcasters (BCAB), the Ontario Cable Telecommunications Association (OCTA), the Ontario Programmers' Association and the Radio-Television News Directors' Association of Canada (RTNDA). Licensees submitting comments included the Canadian Broadcasting Corporation, 33 radio stations and multiple station owners, five television licensees, six cable licensees and multiple system operators, and The Sports Network (TSN). Submissions were also received from groups and individuals associated with the radio industry, such as talk-show hosts, a radio syndicator and a closed circuit radio service, and from those involved in community programming on cable, including producers, directors, volunteers and other participants.

Among the other organizations replying to the Public Notice were a variety of citizens' groups and other interest groups, the Canadian Bar Association, the Conseil de Presse du Québec, and several provincial governments. The majority of comments were from private citizens and elected representatives. Those supporting the proposed guidelines generally believe that the establishment of industry guidelines for open-line programs is necessary to ensure that open-line shows are a forum for the exchange of informed and unbiased points of view. According to the League for Human Rights of B'Nai Brith Canada: "The influence of the media can be tremendous. Program hosts often have an effect on their listening public. It has long been recognized in this country that they have a responsibility to conduct their programs in a fair and unbiased manner".

Several of those expressing support for the proposed guidelines were concerned regarding the enforcement of the guidelines, particularly those with respect to abusive comment. The Centre for Research-Action on Race Relations, for example, wrote: "the CRTC must become more vigilant and severe towards licensees who continuously expose, intentionally or otherwise, an individual or a group or class of individuals to hatred, contempt, ridicule and discrimination on the basis of race, national or ethnic origin, color, religion, sex, age or mental or physical ability".

According to Fundy, "... an industrywide set of fundamental guidelines for open-line programs is long overdue". CKO Incorporated wrote: "We ... find ourselves in support of the specific guidelines proposed, most of which are already in effect at CKO and have been since we began broadcasting open-line programs in 1977".

KEY Radio Limited suggested that, instead of issuing specific guidelines at this time, the Commission should "publish a full policy and evaluation of open-line programming in Canada". Humber Valley Broadcasting Co. Ltd. felt that "Broadcasters, through the CAB, should develop industry guidelines ... [for open-line] programs, thereby becoming fully self-governing, in consultation with the CRTC".

Several broadcasters expressed the view that many of the measures proposed in the guidelines are "common sense" rules generally followed by those broadcasting open-line programming. CFPL Broadcasting Limited, for example, wrote: "Without question, many of the suggested guidelines are not only reasonable, but have been the norm for many years and those of us who have been deeply involved in open-line programming practise them as a way of life."

On the other hand, many commented that the guidelines proposed by the Commission were often vague or impractical. For example, a number of those who submitted comments considered that the definition of some concepts, such as "abusive comment", "issues of public concern" and "sensationalism", were open to biased, subjective interpretation. As another example, several wrote that the proposed guideline recommending the use of a tape delay system would be inappropriate in the case of conventional, specialty and cable television licensees, as video delay systems are very expensive and impractical to implement.

A number of broadcasters, including the CBC, TVOntario, CKO Incorporated, Humber Valley Broadcasting Co. Ltd. and Fundy, stated that they already have guidelines, policies or other control mechanisms in place with respect to the conduct of open-line programs.

Although some broadcasters suggested that many of the measures described in the proposed guidelines would not be objectionable if adopted and administered by broadcasters on a voluntary basis, the majority opposed the imposition of guidelines by the Commission.

The CAB wrote that its members "are strongly opposed to the adoption of the proposed guidelines". It recommended that the Commission continue to respond to problems concerning open-line programs "with the instruments currently at its disposal". The CAB further stated that: "Private stations should be encouraged to develop their own internal guidelines ... In cases where a licensee failed to respond to the Commission's satisfaction to repeated and substantiated complaints from the public the Commission may request that it file its own guidelines with the Commission and ultimately that these guidelines or any others deemed appropriate be discussed at a public hearing."

The OCTA felt that "no new action is required on the part of the Commission" as "the broad principles that have been in use in the broadcasting industry to date are generally well understood and correctly interpreted by many producers and participants in open-line shows".

The CCTA opposed the application of one set of open-line guidelines in respect of both over-the-air broadcasters and cable licensees. It considered that the proposed guidelines were designed for radio stations and included requirements that are not compatible with community programming. The CCTA wrote: "If guidelines need to be established concerning open-line programs distributed on the community channel, they should be designed to reflect community programming's operating environment and mandate." As part of its intervention, the CCTA developed and submitted a set of guidelines for open-line community programs, by which its members would be encouraged to abide.

Several cable companies, including CF Cable TV Inc., The Regina Cable Co-operative, Rogers Cablesystems Inc., CUC Broadcasting Ltd. and MacLean Hunter Cable TV Ltd., confirmed that they have their own guidelines, policies or codes of behaviour in place with respect to open-line programming.

A number of other arguments against implementation of industry guidelines for open-line programs were put forward in the submissions. These can be summarized as follows:

1. The general consensus among those objecting to the proposed guidelines was that the imposition of industry guidelines is unncessary on the grounds that only three transgressions have been serious enough to warrant a censure or other action by the Commission.

 The CAB, which estimates that between 50,000 and 75,000 hours of open-line programs are broadcast yearly by AM stations, suggested that the fact that there were only three serious incidents attested to the "high degree of professionalism and responsibility" demonstrated by broadcasters in this area.

 The CCTA wrote that the relatively few complaints received by the Commission regarding open-line programs on community channels is "evidence that community programmers are acting responsibly, performing their jobs well, and [are] already fulfilling the objectives outlined by the Commission in the proposed guidelines for open-line programs".

2. Many of those commenting considered that the imposition of industry guidelines would be unnecessary, since adequate safeguards already exist within the broadcasting regulations, the Broadcasting Act and in federal, provincial and civil law to ensure responsible broadcasting and to redress any alleged violations or offences.

 The CAB also noted that Clause 2 of the CAB Code of Ethics addresses the issue of abusive or discriminatory comment. The RTNDA wrote that its Code of Ethics effectively includes all of the principles addressed in the Commission's proposed guidelines.

3. The majority of comments opposing the proposed guidelines, including many from the broadcasting industry and other interested parties, focused on the concern that they would infringe upon freedom of expression. Moreover, several considered that the guidelines may violate paragraph 2(b) of the Charter of Rights and Freedoms and paragraph 3(c) of the Broadcasting Act. The BCAB, for example, wrote: "A review of the open-line programmes guidelines raises issues fundamental to the ability of the broadcaster to operate in our democratic society. The right to free expression is entrenched in the Canadian Charter of Rights and Freedoms. The proposed guidelines for open-line programmes appear to infringe on this freedom".

4. Many broadcast and cable representatives considered that the proposed guidelines would change the nature of open-line programming and discourage broadcasters and cable operators from airing open-line shows.

5. The CAB and several broadcasters felt that the imposition of industry guidelines by the Commission would be an additional and unnecessary regulatory burden. The OCTA also suggested that "... were the Commission to adopt these proposals, more guidelines will eventually be added in a "spiral of regulation" which will limit the creativity of the entire system in pursuit of the few who abuse it".

IV. POLICY REGARDING OPEN-LINE PROGRAMMING

In consideration of the complaints received regarding open-line programs and the transgressions which have occurred in recent years, the Commission remains concerned regarding the conduct of open-line programming. Specifically, the Commission is concerned that licensees who carry open-line programs be aware of, and adhere to, the requirements with respect to abusive comment, balance and high standard, as set out in the Act and the regulations.

The Commission recognizes the responsibility demonstrated by the broadcasting and cable industries overall in the area of open-line programming. Moreover, it recognizes that many licensees have internal guidelines, policies, or other mechanisms in place with respect to the conduct of open-line programs.

Consequently, the Commission is not persuaded that it is either necessary or desirable for it to impose industry guidelines on open-line programs at this time, but will continue to deal with concerns regarding open-line programs on a case-by-case basis.

The Commission commends those broadcasting and cable licensees who have established internal guidelines or other control mechanisms with respect to open-line programs. It also commends the CCTA for developing the CCTA Guidelines For Open-Line Community Programs. The Commission encourages all licensees who carry open-line programs and who do not currently have guidelines or other control mechanisms in place to establish measures to ensure that their regulatory obligations and responsibilities with respect to open-line programming are met at all times.

The Commission will require licensees it considers to have shown themselves unable to meet the provisions of the Act and regulations with respect to open-line programming to develop appropriate guidelines and other control mechanisms that address the requirements regarding abusive comment, balance and high standard as set out in the regulations and the Act. Moreover, such licensees will be required to file their guidelines and a description of any other proposed control mechanisms with the Commission for its approval. The Commission will closely monitor complaints concerning the open-line programming of these licensees. The conduct of their open-line programs and the effectiveness of their control mechanisms will subsequently be reviewed at licence renewal time. As stated in the decisions released today regarding the licence renewals of CJRN, Niagara Falls, and CHRC, Quebec City, the Commission requires these licensees to submit their guidelines and control mechanisms with respect to open-line programming for Commission approval within three months.

The Commission hereby puts Fundy on notice that it will be required to report on the guidelines and other control mechanisms it has in place with respect to open-line programming at the time the Commission considers the renewal of its licence for CFBC Saint John, which expires 31 August 1989.

Fernand Bélisle
Secretary General