ARCHIVED -  Decision CRTC 94-106

Decision

Ottawa, 24 March 1994

Decision CRTC 94-106

CKDU-FM Society

Halifax, Nova Scotia - 931277800

Licence Renewal

Following a Public Hearing in Fredericton beginning on 7 December 1993, the Commission renews the broadcasting licence for CKDU-FM Halifax from 1 September 1994 to 31 August 1998, subject to the conditions now in effect under the current licence, as well as to those conditions specified in this decision and in the licence to be issued.

This term will enable the Commission to assess the licensee's performance in response to the serious concerns set out in this decision.

CKDU-FM Society (the Society) is a not-for-profit organization without share capital operated by the students of Dalhousie University in Halifax. The Commission called the Society to the Fredericton public hearing to discuss the licensee's renewal application and the implementation of programming guidelines with respect to the broadcast of material that listeners may find objectionable.

Since the station's most recent licence renewal in 1991, the Commission has received nine written and fourteen oral complaints from individuals offended by the programming broadcast on CKDU-FM. Most of the complaints dealt with apparently obscene and offensive language, not only in the special programming offered by the station, but also in the commentaries by disk-jockeys and in the musical selections broadcast during general programming.

Paragraph 3(1)(g) of the Broadcasting Act (the Act), from which the Commission derives its mandate, states that "the programming originated by broadcasting undertakings should be of high standard". In this decision, the Commission focuses on two specific incidents contained in the public record pertaining to CKDU-FM's licence renewal application, and sets out its determinations on these incidents in relation to the high standard requirement of the Act.

The Commission reminds the licensee that it uses public airwaves to broadcast its programming and that any member in the general public can receive its programming. The use of public airwaves confers a responsibility on licensees to broadcast programming that, at all times, is acceptable under existing community standards.

Complaint by Wayne S. Harvey

On 6 July 1993, the Commission received a complaint from Mr. Wayne S. Harvey objecting to the "coarse language" and the "reference to gay sexual preferences" in the programming aired on CKDU-FM between 12:30 p.m. and 1:45 p.m. on 25 June 1993. In its response to Mr. Harvey, the licensee noted that the program at issue was broadcast as part of CKDU-FM's "All Day, All Gay" special programming. The licensee explained that, since the "All Day, All Gay" special programming was intended to celebrate gay and lesbian pride, it was essential that it be broadcast in prime time, and that it include frank and realistic depictions of gay and lesbian sexuality. Further, the licensee stated that it had publicized the upcoming special programming on the station for two weeks prior to broadcast. While noting that the first piece was preceded by a warning that some listeners might not be "comfortable" with some of the language in the upcoming programming, the licensee claimed that repeated warnings throughout the programming would alienate listeners in the gay and lesbian community.

At the hearing, the licensee acknowledged that the announcement aired in advance of the 25 June 1993 special programming was promotional and did not contain any cautionary warning for listeners who might be offended by the programming content.

The Commission is concerned with the licensee's apparent disregard for the responsibilities and obligations that are conferred by the Act on those who are granted licenses by the Commission. The Commission finds that the broadcast in the middle of the day of the sexually explicit material referred to in Mr. Harvey's complaint does not meet the high standard required by the Act. Further, the Commission notes that this broadcast violates the Society's own internal guidelines, as filed in 1991, which stipulate that "programs which have the greatest chance of containing objectionable material [be] aired on CKDU-FM after 10 p.m. and often after midnight".

The Commission notes that Mr. Harvey's complaint is not the first that it has received concerning programming of this nature broadcast by CKDU-FM, nor is this the first time that CKDU-FM has been advised of the Commission's position with respect to the appropriate time for the broadcast of sexually explicit material. During CKDU-FM's previous licence term, the Commission received two similar complaints objecting to the sexually explicit language and the subject matter of the "Halifax is Flaming" special programming broadcast from 6:00 p.m. to 10 p.m. on 18 June 1991 in association with Gay Pride Day. The Commission advised the licensee in a letter dated 18 December 1991 of its determination that the licensee had made serious errors in
judgement in failing to provide adequate warning as to the nature and language of the material to be broadcast, and in broadcasting this type of program between 6:00 p.m. and 10:00 p.m.

In addition, the Commission determined that the airing of this type of adult programming between the hours of 6 p.m. and 10 p.m. was inappropriate and asked CKDU-FM to adhere, in future, to its own guidelines that programming with the greatest chance of containing objectionable material not be broadcast before 10 p.m. The Commission advised the licensee that it should broadcast warning messages, not only at the beginning of a program that may contain explicit sexual language, but also interspersed throughout the program, so that listeners who tune in unexpectedly fully understand the nature of the program. Further, the Commission advised the licensee that any advertisements for such programs should be clear as to the nature of the program to be broadcast and should include warnings, if required.

Complaint by Gene Keyes

In a letter to the Commission dated 11 August 1993, Mr. Gene Keyes complained about a song broadcast on CKDU-FM on 7 August 1993 at approximately 1:20 a.m. Mr. Keyes stated that the song was apparently about suicide and necrophilia.

On 23 August 1993, the Commission asked the licensee to respond to Mr. Keyes in writing within two weeks, and to forward a copy of this reply, along with a tape of the song in question, to the Commission. The Commission did not receive a response to this request. Following a request made by the Commission at the hearing, however, the licensee did provide the Commission with a copy of its 30 August 1993 letter to the complainant, along with tapes of the three songs that it claims to have played within the time frame referred to in Mr. Keyes' complaint. In its letter to Mr. Keyes, the licensee indicated that the programmer responsible for broadcasting the song at issue was "dismissed from any on-air privileges at CKDU-FM". The licensee also stated that the "broadcast was certainly not within the bounds of what we consider to be acceptable" and that "it is the view of the staff of CKDU-FM that the material was inappropriate for broadcast".

The Commission finds that the broadcast of material referred to in Mr. Keyes' complaint violates the high standard requirement of the Act. Further, the Commission agrees with the licensee's assessment that such material is "inappropriate for broadcast".

CKDU-FM's Programming Guidelines

In a letter to the Commission dated 13 October 1993, the licensee acknowledged that the complaints received during the current licence term had made it apparent that CKDU-FM's guidelines, in place since 1991, needed to be improved. On 15 November 1993, the Society submitted to the Commission a draft copy of new internal guidelines.

At the hearing, the Commission discussed with the licensee some concerns regarding the revised guidelines. Specifically, the Commission expressed concern that the revised guidelines do not include any provision restricting the hours in which sexually explicit material may be broadcast. The Commission also noted that the new guidelines do not include any criteria to determine what sexually explicit material may or may not be programmed on CKDU-FM. Moreover, the Commission stated that the guidelines should include provisions requiring that warning messages broadcast in conjunction with a program containing sexually explicit material be aired frequently, not only before such a program, but also interspersed throughout the program. For its part, the licensee stated that it considers it appropriate to broadcast sexually explicit or other potentially objectionable material at any time during the broadcast day in the case of special programming targeted to specialized groups, such as the gay and lesbian community, who are not well-represented in the mainstream media. The licensee nevertheless did agree that the revised guidelines need to be developed more fully, and stated that it would submit new guidelines within six months.

The Commission is not satisfied that the licensee has acted responsibly with regard to the requirement of high standard contained in the Act, or to the concerns of the Commission and some of the station's listeners.

The Commission expects the licensee to ensure that the revised guidelines adequately address the concerns expressed in this decision. Specifically, the Commission requires that the revised guidelines include control measures expressly tailored to special programming that is not part of the station's regular programming, such as the "All Day, All Gay" program, and to any other programming that may contain sexually explicit material. In light of the requirements of the
Act, such measures must include provisions specifying:

1. that warning messages be aired one week before a "special program" containing sexually explicit material, two hours before such a program, and every hour on the hour during the program, as well as immediately before any other programming that contains sexually explicit material;

2. that sexually explicit material shall not be broadcast except between 9 p.m. and 6 a.m. in order to lessen the possibility that children, and others who might be offended by this material, are listening; and

3. that when an occasion arises where material to be aired may conflict with generally accepted audience values regarding such matters as vulgarity, profanity or sexual behaviour, the material shall only be broadcast if it is in the proper context, is integral to the theme of the program, and has worthwhile educational value.

The Commission notes that the third provision set out above is basically the same as one contained in the licensee's current guidelines.

In light of the requirement for programming of high standard set out in paragraph 3(1)(g) of the Act, it is a condition of licence that the licensee file with the Commission on or before 1 September 1994, revised guidelines that include the three provisions noted above.

It is a condition of licence that, once the guidelines are approved by the Commission, the licensee shall adhere to them.

It is a condition of licence that, should the licensee submit revised guidelines that are not acceptable to the Commission within the time frame specified in this decision, the licensee shall adhere to the three provisions set out above.

The Commission reminds the licensee that the Act contains provisions relating to the enforcement of conditions of licence. For example, the Act empowers the Commission to issue mandatory orders, which may be made orders of the Federal Court or of any superior court of a province and are enforceable in the same manner as an order of the court. According to the Federal Court Rules, anyone found guilty of disobeying an order of the Court would be found in contempt of court and liable to a fine.

Without prejudice to other means of enforcement available, the Commission puts the licensee on notice that, in future, should the Commission consider that the licensee is in breach of any condition of licence respecting programming guidelines, the Commission may call the licensee to a public hearing to show cause why the Commission should not issue such a mandatory order.

Other Matters

It is a condition of licence that the licensee retain full control over all decisions concerning the management and programming of this station and that representatives of the student body, faculty, alumni or administration representatives of the university or college with which the station is associated, considered together, form the majo-rity of the board of directors. In addition, the Commission reminds the licensee that, in accordance with the requirements of the "Direction to the CRTC (Eligible Canadian Corporations)", the chairman or other presiding officer and each of the directors or other similar officers of the licensee must be Canadian citizens.

In accordance with Public Notice CRTC 1993-38 dated 19 April 1993 entitled "Policies for Local Programming on Commercial Radio Stations and Advertising on Campus Stations", the Commission authorizes the licensee, by condition of licence, to broadcast no more than 504 minutes of advertising per broadcast week, with a maximum of 4 minutes in any one hour. Of the weekly total of 504 minutes, a maximum of 126 minutes may be conventional advertising. The remainder of advertising broadcast must conform to the definition of restricted advertising set out in Public Notice CRTC 1993-38.

In Public Notice CRTC 1992-59 dated 1 September 1992 and entitled "Implementation of an Employment Equity Policy", the Commission announced that the employment equity practices of broadcasters would be subject to examination by the Commission. The Commission encourages the licensee to consider employment equity issues in its hiring practices and in all other aspects of its management of human resources. The Commission attaches particular importance to the development of Canadian talent and notes the licensee's efforts in this regard. It encourages the licensee to continue these efforts during the new licence term.

The Commission acknowledges the 46 interventions submitted in support of CKDU-FM's licence renewal application.

Allan J. Darling
Secretary General