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Ottawa, 26 November 2010

 

Via email

 

Greg Duffell

internationalconnection@rogers.com

 

Daniel Besharat

danbesharat@hotmail.com

 

David James Cooper

moondogsballroom@yahoo.com

 

Tony Barnes

djtonybarnes@yahoo.com

 

CKLN Radio Incorporated

Attn: Andrew Lehrer and Ron Nelson

stationmanager@ckln.fm; programdirector@ckln.fm; board@ckln.fm

 


Re:Broadcasting Notice of Consultation 2010-146-4, Item 1, Reference No. 2010-0098-4
Determinations regarding the Interventions of Mr. Duffell, Mr. Besharat, Mr. Cooper and Mr. Barnes.

 

Dear Sirs:

 

This letter is to inform you that, based on the submissions of the parties and for the reasons stated below, the Commission has made the following determinations with regards to 1) the request by representatives of CKLN Radio Incorporated (CKLN) that all or part of the interventions filed by Mr. Duffell, Mr. Besharat, Mr. Cooper and Mr. Barnes on 8 November 2010 be struck from the record, and 2) the request that these persons not be permitted to appear at the hearing:

 

All documents required to be re-filed must be re-filed with the Commission by 2 December 2010 before 12:00 p.m. (EST), and will be added to the public record of the proceeding. Parties must remove only the paragraphs that have been struck from the record and must not otherwise modify the intervention or reply from that originally filed. Failure to abide by this requirement may cause the Commission to strike the intervention or reply from the record in its entirety.

 

All parties requested to appear at the hearing must limit their comments to facts and arguments on the public record of the proceeding.

 

BACKGROUND

 

In Notice of Consultation 2010-146, the Commission stated that it would hold a hearing to determine whether to issue mandatory orders or suspend or revoke CKLN’s licence. The Commission identified several areas of apparent non-compliance, including logger tapes, annual returns, failure to respond adequately to complaints, operation of the transmitter, and the apparent possible transfer of control to the Ryerson Student Union and/or the Palin Foundation. In addition, the Commission identified additional concerns regarding compliance with the Campus Radio Policy and viability of the station.

 

The Commission subsequently adjourned the hearing on this matter originally scheduled for 12 May 2010. In Notice of Consultation 2010-146-4, the Commission announced that it had reconvened the hearing and called for comments from existing or new interveners on the “additional information filed in the context of this proceeding, namely the reports received from CKLN Radio, the complaints and Commission correspondence, as well as the licensee’s apparent failure to comply with subsection 9(2) of the Regulations as noted [earlier in Notice of Consultation 2010-146-4].”

 

On 8 November 2010, the Commission received interventions filed by Mr. Duffell, Mr. Besharat, Mr. Cooper and Mr. Barnes within the timelines set out in Notice of Consultation 2010-146-4.

 

On 15 November 2010, the Commission received the reply to these interventions filed by CKLN, and on 16 November 2010 the Commission received an additional reply to Mr. Duffell and Mr. Besharat filed by CKLN.  In its replies, CKLN has requested that all or parts of these four interventions be struck from the record.  CKLN also asked that the request by these interveners to appear at the hearing be denied.

 

On 18 November 2010, Commission staff issued a letter to these four interveners, copying CKLN, providing each intervener an opportunity to file a reply to these two requests. On 23 November, the Commission received replies to these two requests by all four interveners.

 

The Commission has based its determination on these submissions. However, the Commission has not added these submissions to the public record of this proceeding. Instead, the Commission will add this letter, along with the re-filed interventions, to the public record.

 

ANALYSIS AND DETERMINATIONS

 

In analysing the requests by CKLN with regards to each intervener, the Commission has considered both the duty of fairness owed to a licensee facing the issuance of mandatory orders or the suspension or revocation of its licence, as well as the important public interest in ensuring that the Commission has on the record all information falling within the scope of the proceeding which may be relevant to its determination. The Commission has also carefully considered the impact its determinations may have on ongoing related litigation, mediation, arbitration and labour disputes.

 

The Interventions of Greg Duffell and Daniel Besharat.

 

CKLN objected to Mr. Duffell and Mr. Besharat’s criticism of the level of detail regarding the mediation provided in the monthly reports (Duffell, paras 28-29; Besharat, paras 46-49), on the basis that these statements are designed to provoke CKLN into revealing confidential information. Mr. Duffell and Mr. Besharat replied by stating that their statements are relevant and that they are not responsible for how CKLN chooses to respond.

 

The Commission considers that the statements in the interventions are not prejudicial to CKLN and that CKLN has replied to these statements.

 

CKLN also objected to Mr. Duffell and Mr. Besharat’s criticism of CKLN’s reply to the Commission’s Performance Evaluation Report (Duffell, paras 106-168; Besharat paras 66-76) on the basis that CKLN’s reply was not part of the additional documents for which the Commission asked for comment in response to Notice of Consultation 2010-16-4. CKLN also objected to a subset of this discussion by Mr. Duffell which related to the volunteer agreement, status of the former show ‘International Connection’ and criticism of its replacement show, the Shannon Reiner Show (paras 133-139 and 144-168). Mr. Duffell and Mr. Besharat replied by stating that these paragraphs do not discuss ongoing litigation and are relevant to the issue of compliance with respect to logs and records and programming requirements.

 

The Commission agrees with CKLN that the interveners’ response to CKLN’s reply to the Commission’s Performance Evaluation Report is out of scope of the call for additional comments in Notice of Consultation 2010-146-4. Interveners were provided the opportunity to respond in writing to the Performance Evaluation Report pursuant to the process set out in Notice of Consultation 2010-146-2, followed by written reply by CKLN.  The Commission notes Notice of Consultation 2010-146-4 did not provide an additional opportunity to file new evidence in reply to CKLN’s reply.

 

Finally, CKLN objected to Mr. Duffell and Mr. Besharat’s criticism of the recent Annual General Meeting and submissions that it was not conducted in compliance with CKLN’s bylaws (Duffell, paras. 188-196, 202-240; Besharat, paras. 61-65).  The Commission considers that this topic is the subject of ongoing litigation and judicially assisted mediation before the Honourable Mr. Justice Campbell of the Ontario Superior Court of Justice and is therefore outside the scope of the proceeding.

 

Therefore, the Commission determines that paragraphs 106-168, 188-196 and 202-240 and the Exhibits referred to therein of the intervention by Mr. Duffell and paragraphs 61-76 of the intervention by Mr. Besharat are struck from the record. Consequently, the Commission also considers that paragraphs 1-10 and 12-17 of the reply by CKLN to Mr. Duffell’s intervention, and paragraphs 1 and 13 of the reply by CKLN to Mr. Besharat’s intervention, all of which refer to the struck paragraphs, are also struck from the record. Both parties are required to re-file their submissions with the struck paragraphs removed.

 

The Commission notes that both Mr. Duffell and Mr. Besharat filed interventions dated 12 April 2010 in response to Notice of Consultation 2010-146 to which CKLN did not object and which remain on the public record. The Commission also notes that the interventions by Mr. Duffell and Mr. Besharat filed in the response to Notice of Consultation 2010-146-4 have not been struck in their entirety.  As a consequence, Mr. Duffell and Mr. Besharat will be requested to appear at the hearing to address only the information that remains on the record.

 

The Interventions of Tony Barnes and David James Cooper

 

CKLN objected to the provision of information by Mr. Barnes and Mr. Cooper regarding ongoing civil suits and labour dispute to which CKLN is a party (Barnes, paras 3 and 8-31; Cooper, paras 3 and 7-22). CKLN argued that it had no obligation to provide the Commission with an update as part of its monthly report on anything but the judicially assisted mediation before the Honourable Mr. Justice Campbell and that the information was therefore not related to the monthly reports and outside the scope of the call for additional comments in Notice of Consultation 2010-146-4. CKLN also argued that Mr. Barnes and Mr. Cooper had improperly disclosed information that is confidential to the parties of these civil suits and labour dispute. Mr. Barnes and Mr. Cooper replied that, while the specific details of these proceedings may not be relevant to the Commission’s determinations in this matter,  the fact that these proceedings exist is relevant, especially to counter statements made by CKLN on the record against former board members and staff of the station.

 

The Commission agrees that this information is outside the scope of the call for additional comments in Notice of Consultation 2010-146-4.

 

CKLN also objected to the description of the purported “seizure” of CKLN by the current Board of Directors provided by Mr. Barnes (paras 4-7 and 32-33) and Mr. Cooper (paras 2 and 4-6).  Mr. Barnes and Mr. Cooper replied that a key issue to be determined by the Commission is the true facts concerning how the dispute regarding the station began, and that as participants in this process, they could provide the Commission with important insight on these points.

 

The Commission considers that, while information regarding this history may have some relevance to the proceeding, it does not fall within the scope of the call for additional comments in Notice of Consultation 2010-146-4.

 

Therefore, the Commission determines that paragraphs 3-33 of the intervention by Mr. Barnes and paragraphs 2-22 and attachments I&2 of the intervention by Mr. Cooper are struck from the record.

 

As paragraphs 3-33 of Mr. Barnes’ intervention constitute the entire substance of the intervention, the Commission determines that this intervention should be returned, along with CKLN’s reply. Neither document will be placed on the record of the proceeding. The Commission notes that Mr. Barnes had not filed an intervention in response to Notice of Consultation 2010-146. As a consequence, Mr. Barnes is not considered an intervener in the proceeding and will not be requested to appear at the hearing.

 

However, the Commission notes that Mr. Cooper’s intervention has not been struck in its entirety. Therefore, the Mr. Cooper is required to re-file his intervention with the struck paragraphs removed. Also, the Commission determines that paragraphs 8, 9 and 12-24 of the reply by CKLN to Mr. Cooper’s intervention, which refer to the struck paragraphs, are also struck from the record. CKLN is also required to re-file its reply with the struck paragraphs removed. Mr. Cooper will be requested to appear at the hearing to address only the information that remains on the record.

 

Yours sincerely,

 

Original Signed by

 

Robert A. Morin

Secretary General

cc: Mr. Justice Campbell, Ontario Superior Court of Justice.

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