ARCHIVED -  Decision CRTC 96-730

Decision

See also: 96-730-1

Ottawa, 31 October 1996

Decision CRTC 96-730

Radiomutuel inc.

Chicoutimi, Quebec - 952355600

CKRS Short-term Licence Renewal

Following a Public Hearing in Québec beginning on 9 July 1996, the Commission renews the broadcasting licence for the radio programming undertaking CKRS Chicoutimi, from 1 November 1996 to 29 February 1998, subject to the conditions specified in this decision and in the licence to be issued.

This 16-month renewal is the second consecutive short-term renewal that the Commission has issued to CKRS stemming from serious concerns regarding the licensee's performance. Apart from the recent administrative renewal for two months (Decision CRTC 96-524 dated 27 August 1996), the Commission renewed the CKRS licence for only two years in Decision CRTC 94-665 dated 23 August 1994. The Commission stated at that time that the two-year term would allow it to evaluate, within a reasonable period, the licensee's compliance with the provisions of the Radio Regulations, 1986 (the regulations) and with the Commission's expectations regarding Radiomutuel's Policy on Content (the Radiomutuel Policy).

One of the Commission's concerns in 1994 was the licensee's inability to furnish the Commission with complete and intelligible logger tapes of the programming broadcast by CKRS. In this regard, the Commission reviewed the logger tapes of CKRS programming broadcast during the week of 23 to 29 April 1995, and found the licensee to be in compliance with the provisions of subsections 8(5) and 8(6) of the regulations.

The Commission also called the licensee to appear at a public hearing in 1994 following a number of complaints and interventions regarding on-air comments by certain CKRS program hosts. At the time, Radiomutuel acknowledged in a letter to one of the complainants that some comments by a CKRS open-line program host, Louis Champagne, were [TRANSLATION] "coarse, excessive and gratuitous". The licensee also admitted that this was a clear violation of the Radiomutuel Policy and, possibly, a serious contravention of the high standard requirement contained in the Broadcasting Act (the Act).

Given the amendments made to the Radiomutuel Policy following the 1994 hearing and the commitments given by the licensee in this regard, the Commission accepted the 29 June 1994 version of the policy. Pursuant to Radiomutuel's commitments, the Commission expected the licensee to adhere faithfully to its policy during the current licence term. The Radiomutuel Policy contained the three new guidelines noted below: [TRANSLATION]

6.  Coarse and/or vulgar language is not appropriate on the stations' programs;

8.  Individuals and groups are entitled to respect, and they should not be harassed, insulted or ridiculed;

16.  Radiomutuel's AM stations will broadcast a message every day to inform listeners that any person, group, association, business, etc. has a right of reply if they feel offended by any observation, remark, interview, statement or report relating to them.

In its Notice of Public Hearing for the Québec Public Hearing beginning on 9 July 1996, the Commission advised the licensee that it wished to discuss at that hearing several complaints regarding comments broadcast on CKRS filed with the Commission since the last licence renewal. The Commission also stated that it intended to discuss the appropriateness of attaching a condition of licence requiring the licensee to comply with the Radiomutuel Policy. The Commission further indicated that, on examining some of the aforementioned complaints against CKRS, it had formed the preliminary opinion that some of the comments cited would appear to be serious contraventions of the said policy.

The Complaints

The Commission received ten complaints since the last CKRS licence renewal, six of which were discussed at the 9 July 1996 public hearing. These six complaints were as follows:

(1)  two joint complaints from the Jonquière CEGEP and Jacques Vézina, the Director General of the Jonquière CEGEP, dated 16 December 1994 and 16 April 1996 respectively;

(2)  a complaint from Université du Québec à Chicoutimi (UQAC), dated 16 December 1994;;

(3)  a complaint from Lucien Gendron, professor at UQAC, dated 22 December 1994;

(4)  a complaint from Doris Gagnon, Chairperson of the governing Board of Radio communautaire du Saguenay (CHOC-FM), dated 11 December 1995; and

(5)  a joint complaint from Aurélien Leclerc, professor at the Jonquière CEGEP and his wife, Christine Chabot, dated 16 April 1996.

UQAC, the Jonquière CEGEP, Lucien Gendron, Jacques Vézina, and Aurélien Leclerc appeared at the hearing to discuss their complaints. Although some complaints mentioned programs broadcast shortly before the last renewal, they generally related to programs broadcast during the current licence term. All complaints related to the same daily program, that being an open-line program hosted by Louis Champagne. As part of its examination of these complaints, the Commission reviewed more than 1,000 pages of transcript of comments made during this program on various occasions over a period of almost two years.

Given the volume of the public record concerning the complaints and related interventions, the Commission was unable to raise at the hearing all of Mr. Champagne's comments that were the subject of the complaints, and was obliged to focus on those that, in its view, warranted, among others, particular attention. By focusing on a limited number of comments by Mr. Champagne, the Commission also sought to give the licensee the greatest possible opportunity to present its point of view and to justify the comments at issue in light of, among other things, the requirements of the Act, the regulations, and the Radiomutuel Policy.

The specific requirements forming the basis of discussion at the public hearing were the following:

Paragraph 3(1)(g) of the Act:

 "... the programming originated by broadcasting undertakings should be of high standard."

Paragraph 3(e) of the regulations:

3. A licensee shall not broadcast

(e)  any telephone interview or conversation, or any part thereof, with any person unless

(i)  the person's oral or written consent to the interview or conversation being broadcast was obtained prior to the broadcast, or

(ii)  the person telephoned the station for the purpose of participating in a broadcast.

The following provisions of the Radiomutuel Policy: [TRANSLATION]

6.  Coarse and/or vulgar language is not appropriate in the stations' programs;

7.  Participants in an open-line or other program should not be harassed, insulted or ridiculed;

8.  Individuals and groups are entitled to respect, and they should not be harassed, insulted or ridiculed;

9.  Hosts must not use their broadcasts to make personal attacks;

13.  At all times, journalists and/or program hosts must make a reasonable effort to confirm the facts before broadcast. Any comment that cannot be supported by substantiated evidence must not be broadcast. Confirmation presupposes detailed research that contains no tendentious or erroneous interpretations;

24.  Depending on the circumstances, a program host, journalist or guest may use verbal caricature with regard to a public personality.

Five complaints stemmed from questions and criticisms by the host, Mr. Champagne, concerning the Jonquière CEGEP, UQAC, and their respective administrators and professorial staff. The complaints were addressed less to the fact that Mr. Champagne had chosen to critize the CEGEP and UQAC than to the inaccuracies of the allegations and insinuations contained in Mr. Champagne's broadcasts, to the methods employed in his questioning, and to what the complainants described as the gross, vulgar and insulting tone of his comments, all designed, they claimed, to offend, ridicule and humiliate certain individuals. As part of their nterventions at the public hearing, the complainants in question submitted that a number of measures be taken against CKRS, including the temporary suspension of its licence.

The sixth complaint arose from comments Mr. Champagne made about Radio communautaire du Saguenay, which the complainant characterized as denigrating, false, mendacious, vulgar and vexatious.

The transcript of the broadcasts examined at the public hearing reveals, among other things, the following:

(a)  that Mr. Champagne called the rector of the UQAC "the rectum" and stated that the real name of Bernard Angers, the rector, is "St-Bernard"; that Mr. Collin, UQAC's vice-rector is the "vice-rectum" or "rectarumtavitch"; and that UQAC is a "shitty university";

(b)  that Mr. Champagne stated that UQAC's administrators and professors are little assholes, brownnosers and seducers who abuse the institution's funds;

(c)  that, on several occasions, Mr. Champagne made insinuations regarding Mr. Leclerc's personal life;

(d)  the repeated broadcast (32 times according to the transcript, and, often, several times during the same program), without Mr. Leclerc's consent, of a telephone message that the latter reportedly left in a voice mailbox;

(e)  that CHOC-FM is controlled by "female granola power", an expression used many times by Mr. Champagne; and

(f)  that it was not clear that the licensee had obtained the consent of individuals whose telephone conversations with Mr. Champagne were broadcast.

In response to the licensee's position that the complainants could have availed themselves of their right, provided in the Radiomutuel Policy, to respond to Mr. Champagne's allegations over-the-air, and to defuse the debate, the complainants cited the host's comments with regard to certain participants who had chosen to express comments contrary to his own during his program.

Following are some of the comments examined at the Public Hearing: [TRANSLATION]

 "Give me your name, act like a man. Be a man, can you do that? Chicken shit! Coward! Yellow!"

 "You're too chicken shit to give your name. We're flushing him. Give your name or don't talk ..."

 "Eat shit, the guy who's listening to me. You're stupid. Look how the CEGEP has shown once again if it's true how dumb they are ..."

 "Go take a shit. How do you say that in Engl...? Go take a shit. Yes. A private radio station, a private business. Go take a shit.";

 "I don't need assholes like you. We're going to the next one. Next call.";

 "She can go get fucked.";

 "Who's the imbecile talking to me this morning? He's so funny, that naughty boy. Are you dense like that all day long, or are you sensible now and then?";

 "Then listen to another station, sir, some FM stations bust their butts to get imbeciles like you."; and

 "Oh go to hell, go somewhere else. Well, I had an Italian this morning, a faithful listener that we just lost."

Position of the Licensee

At the public hearing, the licensee vigorously defended its position that the comments cited in the complaints contravene neither the Radiomutuel Policy nor the high quality requirement, nor the regulations. The licensee essentially repeated the arguments presented in its written replies to the various complaints, as follows:

(1)  The [TRANSLATION] "familiar" vocabulary or the [TRANSLATION] "robust" tone that the host, Mr. Champagne, uses from time to time must be appreciated in its context and as a whole. In context, the comments to which the complainants object do not constitute violations of the Radiomutuel Policy. Moreover, the citing of these comments out of context by the complainants prejudices the licensee;

(2)  The comments cited in the complaints or interventions are in the nature of verbal caricature as authorized by section 24 of the Radiomutuel Policy and represent the language used by ordinary people;

(3)  The comments do not constitute cases of flagrant excess, and the Commission stated earlier that it is only in cases of flagrant excess that it intends to find that the bounds of freedom of expression have been exceeded, and that in all situations lying within the gray area, the ruling would favour freedom of expression;

(4)  The comments about the CEGEP, Mr. Vézina and the University are attributable in part to their lack of forthrightness in handling the licensee's requests for information; and

(5)  The licensee objects to the Commission making compliance with the Radiomutuel Policy a condition of licence because, among other things, that would be inconsistent with the Commission's efforts to deregulate the radio industry, compromise the very foundations of phone-in programming, and would do harm to the licensee in the civil actions brought against it by the complainants.

Commission Conclusions

In the Commission's view, the problems raised by the complaints do not lie in the substance of the Radiomutuel Policy (which the Commission approved in 1994), but in the licensee's interpretation of the application of that policy. In this regard, it should be noted that almost all interveners agreed that the Radiomutuel Policy accurately articulated the high standard requirement of the Act.

In the view of the Commission, it is clear that comments like [TRANSLATION] "chicken shit", [TRANSLATION] "eat shit", [TRANSLATION] "rectum", and [TRANSLATION] "assholes", as used by Mr. Champagne, are coarse expressions that constitute contraventions of section 6 of the Radiomutuel Policy and the high-quality standard.

The Commission also considers that the above expressions and others used by Mr. Champagne, such as [TRANSLATION] "female granola power" and [TRANSLATION] "shitty university", contravene section 8 of the Radiomutuel Policy. The Commission is further of the view that the expressions quoted above relating to certain participants in Mr. Champagne's program contravene section 7 of the said policy.

The Commission is of the opinion that the repeated broadcast of the telephone message that Mr. Leclerc reportedly left in a voice mailbox constitutes harassment and a personal attack on Mr. Leclerc designed to ridicule him, and, consequently, is a contravention of sections 8 and 9 of the Radiomutuel Policy.

The Commission is unable to accept the justifications offered by the licensee for the following reasons.

The argument that verbal caricature, or that the impugued language is permissible because it represents the language used by ordinary people, would render the Radiomutuel Policy totally meaningless and would give the licensee absolute freedom to broadcast anything it wishes. Further, it is far from clear that the persons targeted by Mr. Champagne are public personalities; the Commission notes in this regard that, under section 24 of the Radiomutuel Policy, provision for verbal caricature is made only with respect to public personalities. It is also far from clear that the comments at issue indeed represent the language of ordinary people. Although these crude expressions are used from time to time, they are not part of everyday language. Furthermore, a host of a phone-in show who, through a radio station, has privileged access to thousands of listeners is not an ordinary person.

The Commission shares the interveners' view that Mr. Champagne's treatment of participants in his program with whom he disagrees makes a mockery of the right of reply provided for in the Radiomutuel Policy.

The licensee also argued that the language used by Mr. Champagne is not coarse because it is heard on other programs in which caricature is a dominant feature. In the Commission's view, the fact that similar expressions may be used on other programs does not alter the coarseness of the comments used on CKRS. In addition, the Commission considers that there is a contextual difference between an open-line program and comedy programs whose essential purpose is to caricature well-known personalities.

In addition, the Commission notes that one objective of the Radiomutuel Policy is to supervise, among other programs, phone-in shows and comic sketches. As for the licensee's arguments that the comments were quoted out of context, the Commission notes that the licensee had ample opportunity at the public hearing to describe the context of the comments under discussion.

At the public hearing, the licensee stated that the language used by its program host was justified in view of the colourful language used by some callers. In the Commission's opinion, even if some callers use coarse words, their actions do not permit the licensee to deviate from its own standards as defined in its policy.

It is further apparent to the Commission that, even if the CEGEP and the university were not forthright with regard to Mr. Champagne's criticisms and allegations (a matter that does not fall within the Commission's purview), that in itself would not justify the language used by the host.

The licensee denied Mr. Champagne's on-air comment that Radiomutuel management, on the day after an injunction was issued against him, had sent him a fax message congratulating him on his work. At the hearing, the licensee argued that Mr. Champagne's comments, once again, were justified as being in the nature of verbal caricature. The licensee acknowledged, however, that Mr. Champagne had not confirmed his facts, as required by section 13 of the Radiomutuel Policy. In the Commission's view, by affirming the above, the licensee admitted to contravening section 13 of its policy.

The Commission notes that, at the public hearing, the licensee stated that Mr. Champagne had previously checked the accuracy of the remarks he made about Mr. Leclerc's private life. In the circumstances, the Commission is unable to determine whether the licensee complied with section 13 of the Radiomutuel Policy with respect to these comments.

At the public hearing, the licensee was adamant that the Commission must be very careful before making a determination concerning the comments that form the basis of the complaints because, according to the licensee, the Commission would be assuming the role of the courts in the various libel actions now pending. The licensee also submitted that it is not the function of the Commission, but rather that of the courts, to rule on the matters raised in the complaints. The licensee also stated that it disagreed with the position of the Commission expressed in its letter of 29 March 1995 that libel actions do not nullify or limit the Commission's authority to carry out its responsibility to prevent breaches of the statutes and regulations falling within its jurisdiction.

The Commission wishes to reaffirm its profound disagreement with the licensee's position. The Commission's jurisdiction is different from that of the civil courts. As stated in its letter of 29 March 1995, the Commission's jurisdiction gives it the right and the obligation to supervise the Canadian broadcasting system, including the policies of individual broadcasters such as the Radiomutuel Policy, and to prevent violations of the statutes and regulations within its jurisdiction. Actions brought before the civil courts cannot prevent the Commission from making determinations on matters of which it is properly seized.

In view of the foregoing, the Commission has determined that the licensee committed serious contraventions of its policy and that the complaints discussed at the public hearing are justified. The Commission is gravely concerned about the licensee's clear and evident failure to comply with its own policy and its tolerance, if not encouragement, of broadcasting which clearly fails to meet the standard and quality expected of it. As noted above, in the circumstances, the Commission has decided to renew the licence for only 16 months.

Further, the Commission concludes that, despite the commitments given by the licensee in 1994, the situation is now more serious than it was then. Under the circumstances, the Commission considers it necessary to require, and does hereby require, that the licensee comply, as a condition of licence, with its Policy on Content.

The Commission shares the view expressed by the licensee at the hearing that freedom of expression is of the utmost importance and that, consistent with its previous decisions, the Commission should limit freedom of expression only in cases of flagrant excess. In the Commission's view, in this case, the licensee has committed flagrant excesses.

The Commission notes that the Act provides for suspension or revocation of a licence, as well as other serious penalties, if the Commission is satisfied, following a public hearing, that a licensee has contravened or failed to comply with, among other things, any condition attached to its licence.

Paragraph 3 (e) of the regulations

During its appearance, the licensee was questioned about the broadcast of telephone conversations with two employees of the CEGEP and with a representative of a hotel in Morocco whose guests included Mr. Leclerc. The Commission asked the licensee if it had obtained the consent of the above persons as required by paragraph 3(e) of the regulations.

The licensee replied that this provision applies only where the broadcast is of a conversation with a person who is expressing an opinion or comment as opposed to a fact. In the view of the Commission, that interpretation is inconsistent with the wording of the paragraph at issue. In the circumstances, the Commission concludes that the licensee contravened paragraph 3(e) of the regulations. The Commission expresses its concern regarding the licensee's non-compliance with this provision of the regulations and expects the licensee to comply with it in future.

Pursuant to the commitments given by the licensee at the Public Hearing, the Commission expects Radiomutuel to:

(i)  inform it as soon as possible of any legal action against CKRS or any judgment or out-of-court settlement resulting from legal action against CKRS or CKRS program hosts relating to on-air comments; and

(ii)  provide a copy of the Radiomutuel Policy to the CKRS program hosts and to any person who requests it.

In Public Notice CRTC 1992-59 dated 1 September 1992 and entitled "Imple-mentation of an Employment Equity Policy", the Commission announced that the employment equity practices of broadcasters would be subject to examination by the Commission. In this regard, 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 licensee is required, by condition of licence, to make payments to third parties involved in Canadian talent development at the level identified for it in the Canadian Association of Broadcasters' (CAB) "Distribution Guidelines For Canadian Talent Development", as set out in Public Notice CRTC 1995-196 or as amended from time to time and approved by the Commission, and to report the names of the third parties associated with Canadian talent development, together with the amounts paid to each, on its annual return. The payments required under this condition of licence are over and above any outstanding commitments to Canadian talent development offered as benefits in an application to acquire ownership or control of the undertaking.

The Commission received two written interventions opposing the proposed reduction in local programming broadcast on CKRS. In Decision CRTC 94-665, the Commission had noted the licensee's plan to reduce local programming to 36 hours a week and its statements that this was a minimum commitment. The Commission notes that, at the 9 July 1996 hearing, the licensee advised that it was now broadcasting more than 67 hours of local programming on CKRS.

This decision is to be appended to the licence.

Allan J. Darling
Secretary General