ARCHIVED -  Decision CRTC 96-783

Decision

Ottawa, 16 December 1996

Decision CRTC 96-783

Radio MF Charlevoix inc.

Saint-Hilarion, La Malbaie and Baie-Saint-Paul, Quebec - 952268100

Licence Renewal; Issuance of a Mandatory Order

Following a Public Hearing held in Québec beginning on 9 July 1996, the Commission renews the licence for the radio programming undertaking CIHO-FM Saint-Hilarion and its transmitters CIHO-FM-1 La Malbaie and CIHO-FM-2 Baie-Saint-Paul, from 1 January 1997 to 31 August 1998, subject to conditions in effect under the current licence, as well as to those conditions specified in this decision and in the licence to be issued. This short-term licence renewal will enable the Commission to review the licensee's performance at an early date in view of the serious concerns discussed in this decision.

The Commission called Radio MF Charlevoix inc. to appear at the July 1996 hearing to discuss its apparent non-compliance with its condition of licence relating to the broadcast of Canadian musical selections from category 3 (Traditional and Special Interest). In Notice of Public Hearing CRTC 1996-5 dated 10 May 1996, the Commission advised the licensee that it would be expected to show cause at the hearing why the Commission should not issue a mandatory order requiring it to comply with this condition of licence.

This is the fourth time in seven years that the licensee of this community station has been granted a short-term licence renewal for failing to honour its commitments and obligations. Decision CRTC 89-917 renewed CIHO-FM's licence for only thirty-two months because the licensee did not honour the commitments in its Promise of Performance relating to, among other things, the broadcast of locally produced programming and category 3 music. Decision CRTC 92-627 renewed CIHO-FM's licence for two years as a consequence of the licensee's non-compliance with the logger tape provisions of the Radio Regulations, 1986 (the regulations) and the commitments in its Promise of Performance relating to category 3 music. Finally, in Decision CRTC 94-673 the station's licence was renewed for only two years because the licensee was unable to comply with subsections 8(5) and 8(6) of the regulations regarding logger tapes. In that decision, the Commission issued a mandatory order requiring the licensee to comply with the logger tape provisions of the regulations.

During the current licence term, the Commission requested the licensee to submit the logger tapes and related documentation for the programming broadcast during the week of 12 to 18 March 1995. The Commission's analysis of the programming broadcast by the station on 13 March revealed that no category 3 selections were logged or broadcast that day. The Commission also found that the Canadian content of the category 3 musical selections broadcast during that broadcast week was 4.2%, whereas the licensee had committed to broadcast 15% at its previous licence renewal. The Commission also found that the music lists submitted by the station were not fully in compliance with paragraph 9(3)(b) of the regulations; they were either incomplete or illegible.

On 8 June 1995, the Commission wrote to the Iicensee requesting comments on the alleged contravention with respect to the level of Canadian content in its category 3 musical selections, and asking it to take corrective action regarding the maintenance of its music lists. In its letter of 7 August 1995, the Iicensee informed the Commission that, owing to technical difficulties, the station was off the air in February and that it had exercised inadequate control over its broadcasts. The licensee informed the Commission that, in future, it would strive to honour its commitments relating to category 3 music. The licensee also indicated that it had taken measures to better maintain its music lists and that it had submitted additional information regarding the Canadian content of its category 2 and category 3 music. Following an analysis of the additional information received, the Commission found that the Canadian content in the category 3 music broadcast during the week referred to above was 4.2%.

At the hearing, the Iicensee submitted that the principal cause of its contravention was the difficulty it experienced in recruiting volunteers [TRANSLATION] "who are interested and can offer a quality radio service in traditional and special interest music in our area". The licensee stated that it had taken several corrective measures, noting that, since that time it had delegated a permanent employee to recruit volunteer workers, and that it had blocked off four to six hours of air time for Quebec folk music, Quebec country music, jazz, new age music, and contemporary religious music programs. It also applied for a grant to purchase [TRANSLATION] "a computer-based system for our music list to assist permanent staff and volunteers" in identifying traditional musical selections that qualify as Canadian content.

As it stated at the hearing, the Commission notes that, although CIHO-FM, as a community station, is staffed largely by volunteers, this in no way justifies its contravention of the regulations. Community station Iicensees are ultimately responsible for their station's performance, and the onus is on them to put in place effective mechanisms and provide the training required to ensure compliance at all times with the regulations and the station's conditions of licence.

Asked at the hearing regarding why it did not consult with the Commission concerning its compliance, the licensee stated that it consulted instead with [TRANSLATION] "its colleagues in radio and in the association, who are a great help". The Commission invites the Iicensee to consult with its staff regarding any question or concern related to the Commission's regulations and policies or to CIHO-FM's conditions of licence.

The Commission is seriously concerned by Radio MF Charlevoix inc.'s repeated failure to comply with its condition of licence relating to category 3 music. After having considered the reasons given by the licensee at the hearing to explain its non-compliance during the licence term ending on 31 August 1996, the Commission is of the view that the licensee has not shown cause why the Commission should not issue a mandatory order. Consequently, the Commission has decided to issue Mandatory Order 1996-5 set out in the appendix to this decision. This mandatory order will be in effect throughout the new licence term.

The Commission will file a certified copy of this mandatory order with the registrar of the Federal Court. As set out in subsection 13(1) of the Broadcasting Act, the Commission's mandatory order will then become an order of the Federal Court, and will be enforceable in the same manner as an order of the Court.

If, at any time, the licensee should fail to comply with the condition of its licence mentioned in the Mandatory Order appended to this decision, the Commission would provide evidence of such failure to the Federal Court. Radio MF Charlevoix inc. would then be required to appear before the Federal Court on a charge of contempt of court. If the licensee were found guilty, it would be found in contempt of court and liable to a fine as provided for by the Federal Court Rules.

While granting CIHO-FM another short-term renewal, the Commission emphasizes that it may resort to additional measures in the event of any future non-compliance with the regulations or conditions of licence, including suspension, non-renewal or revocation of the licence.

With its licence renewal application, the licensee filed an application to amend its conditions of licence by lowering the level of Canadian musical selections in the category 2 material broadcast from 40% to 30%, and the level of Canadian musical selections in category 3 from 15% to 10%. At the hearing, the Iicensee explained that these reductions were proposed essentially to facilitate compliance with the relevant terms of its Promise of Performance. Having examined the Iicensee's application, the Commission considers that the licensee's circumstances do not warrant a departure from its long-standing general practice of denying all licence amendment applications filed by Iicensees who are in non-compliance, particularly when the proposed amendment relates directly to the requirement not complied with. The Commission, consequently, denies this particular request. The Commission notes that its most recent analyses revealed that the licensee exceeded the level of Canadian musical selections from category 2 required by condition of licence.

In Decision CRTC 96-782 also issued today, the Commission approved the application to amend the licence of CIHO-FM announced in Public Notice CRTC 1995-197 dated 23 November 1995 to relieve the licensee of its Promise of Performance commitments regarding the operation of the station in the Group I format. Therefore, pursuant to that decision, it is a condition of licence that this station not be operated within the Specialty format as defined in Public Notice CRTC 1995-60, as amended from time to time by the Commission.

In Decision CRTC 96-782, the Commission also approved in part the application announced in Public Notice CRTC 1995-214 dated 13 December 1995 to further amend CIHO-FM's licence. The Commission approved that part of the application requesting that the licensee be relieved of the commitments to broadcast a minimum level of news programming. However, in that decision the Commission denied that part of the application requesting relief from the commitments establishing a minimum level of spoken word and a maximum level of advertising. The Commission notes that these commitments will remain at a level of 15% spoken word and a maximum level of advertising of 15% of the broadcast week, that is to say, a maximum of 9 minutes per hour.

The Commission notes that the licence amendments approved in Decision CRTC 96-782 are effective immediately.

Further, the Commission notes that, during the new licence term, the station will devote a minimum of 3 hours of musical programming per week to material from content category 3 (Traditional and Special Interest).

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. It considers that community radio stations should be particularly sensitive to this issue in order to reflect fully the communities they serve. It 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 acknowledges the intervention submitted by the Association des radiodiffuseurs communautaires du Québec in support of this licence renewal.

This decision is to be appended to the licence.

Allan J. Darling
Secretary General

APPENDIX TO DECISION CRTC 96-783 / ANNEXE À LA DÉCISION CRTC 96-783

Mandatory Order 1996-5

Radio MF Charlevoix inc., the licensee of CIHO-FM Saint-Hilarion and its transmitters CIHO-FM-1 La Malbaie and CIHO-FM-2 Baie-Saint-Paul, Québec, is hereby ordered, pursuant to subsection 12(2) of the Broadcasting Act, to comply, at all times during the term of the licence granted in Decision CRTC 96-783 dated 16 December 1996, with the condition of its licence set out below:

 The licensee shall, each broadcast week, devote 15 per cent or more of its musical selections from content category 3 to Canadian selections and schedule those selections in a reasonable manner throughout each broadcast day.