ARCHIVED -  Circular No. 424

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Circular No. 424

Ottawa, 30 April 1997
Guidelines for Broadcast Licensees
The attached guidelines are provided in accordance with section 318 of the Canada Elections Act, to advise broadcast licensees on the applicability of sections of the Broadcasting Act and the regulations made thereunder, to the conduct of licensees in relation to a federal general election or referendum.
The writs were issued on 27 April 1997 and the election is to be held on 2 June 1997.
In view of the fact that there is some confusion concerning "black-out periods", it should be noted that the Broadcasting Act (1991), eliminates the black-out period. In addition, the Act eliminates the requirement to identify the sponsor of a campaign message.
However, blackout and sponsor identification provisions survive in the Canada Elections Act which stipulates that partisan political broadcast advertising in relation to this election is permitted only during the prescribed campaign period (from Sunday 4 May 1997 to midnight Saturday 31 May 1997)and political advertising must include a sponsor identification. Licensees are advised to contact Elections Canada to confirm the relevant dates, timesand identifications pertaining to advertisements sponsored by political parties, candidates and third parties.
These guidelines should be considered in conjunction with the Canada Elections Act, the guidelines issued by the Broadcasting Arbitrator, Public Notice CRTC 1988-142 dated 2 September 1988, and Circular No. 334 dated 4 June 1987.
Questions relating to the Broadcasting Act and regulations should be directed to one of the following persons:
Mailing address:
Ottawa, Ontario
K1A 0N2
Telecopier: (819) 994-0218

Bill Howard: (819) 997-5523
Donald Rhéaume: (819) 997-5523

Questions relating to the Canada Elections Act should be directed to:
Mr. Gregory Tardi
Legal Counsel
Elections Canada
1595 Telesat Court
Ottawa K1A 0M6
Telephone: (613) 990-5131
1 (800) 267-7360
Mr. Peter S. Grant
The Broadcasting Arbitrator
Suite 4700
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1E6
Telephone: (416) 601-7620
Fax: (416) 868-1891
Please distribute to News Department, Program Department, Sales Department, Traffic Department and any other affected personnel.
This document is available in alternative format upon request.
Broadcasting Act and Regulations
The following material is drawn from the Broadcasting Act and Regulations.
I. The Broadcasting Act
A. Sections 3(1)(i) (i) and 3(1) (i) (iv) of the Act declare that:
"the programming provided by the Canadian broadcasting system should
(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,
(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, ..."
B. Temporary Network operations are subject to the Act and a request for such operations must be submitted to the Commission for prior approval. See Section 2 of the Broadcasting Act.
II. 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."
The Television Broadcasting Regulations, 1987, Section 11(4), reads as follows:
(4) In addition to the maximum of 12 minutes of advertising material set out in subsection (1), a licensee may broadcast partisan political advertising during an election period.
The Specialty Services Regulations, 1990, Section 6, reads as follows:
"Where a licensee provides time on its service during an election period for the distribution of programs, advertisements or announcements of a partisan political character, the licensee shall allocate the time on an equitable basis to all accredited political parties and rival candidates represented in the election or referendum."
"Election period" has the same definition as that set out in the radio and television regulations.
Section 15 of the Cable Television Regulations, 1986 states:
"Where a licensee provides time on its community channel during an election period for the distribution of programming of a partisan political character, the licensee shall allocate that time on an equitable basis to all accredited political parties and rival candidates."
"Election period" has the same definition as that set out in the radio and television regulations.
III. Following are some excerpts from Public Notice CRTC 1988-142 entitled "A Policy with Respect to Election Campaign Broadcasting" which are applicable to federal and provincial general elections.
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.
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. Equity in Various Categories of Broadcast
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 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 the 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 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 requirements will apply within each of the categories of paid-time, free time, news and public affairs programs.
The Commission notes that the Canada Elections Act sets out a formula for the allocation of paid and free time to registered political parties and considers that the equitable requirement of the regulations would be satisfied by compliance with the requirements of that statute during a federal election or referendum.
Equity in News Coverage (category iii)
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 programming originated by broadcast undertakings should be of high standard" and "the programming provided by the Canadian broadcasting system should provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern". Licensees have an obligation under this section to ensure that their audiences are in-formed of the main issues and of the positions of all candidates and registered parties on those issues.
Equity in Public Affairs Programming (category iv)
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.
The Commission no longer requires that so-called "debates" programs feature all rival parties or candidates in one of more programs. The Commission considers that licensees will have satisfied the balance requirement of the Broadcasting Act if reasonable steps are taken to ensure that their audiences are informed of the main issues and of the positions of all candidates and registered parties on those issues through their public affairs programs generally.
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.
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.
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. Late-entry candidates should receive equitable coverage from the time they enter the campaign.
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 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, the licensee has the responsibility to ensure that such candidates be 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 the Cable Television Regulations, 1986 and the Specialty Services Regulations, 1990) or on the date their candidacies are announced, whichever is later. Offering similar on-air opportunity to an on-air candidate's opponents is no longer an option.
IV. Advertising Content
Television licensees are reminded that under the Television Broadcasting Regulations, 1987, section 11(4), partisan political advertising, including advocacy advertising, is excluded from the calculation of the amount of advertising they broadcast. The Commission advises other licensees that, for this election, any advertising material of a partisan political character with regard to the election, regardless of length, may be treated as program material by licensees who are not prohibited from carrying advertising material by regulation or condition of licence.
To circumvent certain logging software problems that have occurred in the past, television licensees should continue to log such material as "COM". However, to distinguish election advertising material from other television commercials, licensees should insert "ELE" at the beginning or end of the field that is used to identify the advertiser or the title of the advertisement.
V. Of Special Interest to Cable Television Systems - Community Channels
No cable operator is obliged to engage in political programming.
However, if the cable licensee decides to engage in political programming, then the Commission suggests that the following criteria be respected for the two types of political programming normally carried by cable systems:
- free access political programming; and
- programming produced under the editorial control of the cable television licensee.
A. Free Access Political Programming
In this type of programming, time is made available to be used freely and without the intervention of the licensee whether as moderator or in terms of the production process, providing that the general rules regarding existing laws for libel and slander and the broadcasting guidelines respecting equitable treatment are followed. While, as with any community programming, the licensee is ultimately responsible for the program content, the candidate or party is afforded the widest possible latitude and control.
B. Political Programming Under the Editorial Control of the Licensee
Programs produced under the editorial control of the cable licensee are those programs over which the licensee retains control as to format, participants, and where he directly intervenes in the production process as a moderator or otherwise.
These programs can be likened to public affairs programs. Such programming must be done on an equitable basis for all political parties and rival candidates and must conform to the Commission's regulations and policies respecting community programming.
VI. Premature publication of Election Poll results and the publication of opinion surveys
Section 328 of the Canada Elections Act reads as follows:
"No person, company or corporation shall, in any electoral district before the hour fixed by or pursuant to this Act for the closing of the polls in that electoral district, publish the result or purported result of the polling in any electoral district in Canada by radio or television broadcast, by newspaper, news-sheet, poster, billboard or handbill or in any other manner."
Section 322.1 of the Canada Elections Act reads as follows:
"No person shall broadcast, publish or disseminate the results of an opinion survey respecting how electors will vote at an election or respecting an election issue that would permit the identification of a political party or candidate from midnight the Friday before polling day until the close of all polling stations".
Subsection 19 (c) of the Commission's cable regulations reads as follows:
"A licensee shall not alter or curtail any programming service or radiocommunication in the course of its distribution except:
(c) for the purpose of complying with subsection 105 (1) of the Canada Elections Act."
Note that subsection 105 (1) of the Canada Elections Act has been renumbered and is now subsection 328.
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