ARCHIVÉ -  Transcription

 

 

 

 

 

 

 

              TRANSCRIPT OF PROCEEDINGS BEFORE

             THE CANADIAN RADIO‑TELEVISION AND

               TELECOMMUNICATIONS COMMISSION

 

 

 

 

             TRANSCRIPTION DES AUDIENCES DEVANT

              LE CONSEIL DE LA RADIODIFFUSION

           ET DES TÉLÉCOMMUNICATIONS CANADIENNES

 

 

                          SUBJECT:

 

 

 

 

 

Harmony Broadcasting Corporation

 

 

 

 

 

 

 

 

 

 

 

 

 

HELD AT:                              TENUE À:

 

Radisson Hotel Winnipeg Downtown      Hotel Radisson Winnipeg

Manitoba Ballroom, 11th Floor         Centre-Ville

288 Portage Avenue                    Salle Manitoba Ballroom

Winnipeg, Manitoba                    11^e étage

288, avenue Portage

Winnipeg (Manitoba)

 

29 September 2006                     Le 29 septembre 2006

 

 

 

 

 

Transcripts

 

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

 

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

 

 

 

 

Transcription

 

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès‑verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

 

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

               Canadian Radio‑television and

               Telecommunications Commission

 

            Conseil de la radiodiffusion et des

               télécommunications canadiennes

 

 

                 Transcript / Transcription

 

 

 

 

 

Harmony Broadcasting Corporation

 

 

 

 

 

 

 

BEFORE / DEVANT:

 

Barbara Cram                          Chairperson / Présidente

Helen del Val                         Commissioner / Conseillère

Ronald Williams                       Commissioner / Conseiller

 

 

 

 

ALSO PRESENT / AUSSI PRÉSENTS:

 

Gary Krushen                          Secretary / Secrétaire

William Howard                        Legal Counsel /

Conseil juridique

Joe Aguiar                            Hearing Manager / Gérant

de l'audience

 

 

 

 

HELD AT:                              TENUE À:

 

Radisson Hotel Winnipeg Downtown      Hotel Radisson Winnipeg

Manitoba Ballroom, 11th Floor         Centre-Ville

288 Portage Avenue                    Salle Manitoba Ballroom

Winnipeg, Manitoba                    11^e étage

288, avenue Portage

Winnipeg (Manitoba)

29 September 2006                     Le 29 septembre 2006

 

           TABLE DES MATIÈRES / TABLE OF CONTENTS

 

 

                                                 PAGE / PARA

 

PHASE I

 

PRESENTATION BY / PRÉSENTATION PAR:

 

Harmony Broadcasting Corporation                   7 /    36

 

 

PHASE II

 

INTERVENTION BY / INTERVENTION PAR:

 

Martin Boroditsky                                  93 /  799

 

 

PHASE III

 

REPLY BY / RÉPLIQUE PAR:

 

Harmony Broadcasting Corporation                  112 /  900

 

 

             Winnipeg, Manitoba / Winnipeg (Manitoba)

‑‑‑ Upon commencing on Friday, September 29, 2006

    at 0930 / L'audience débute le vendredi

    29 septembre 2006 à 0930

1                THE CHAIRPERSON:  Good morning, ladies and gentlemen and welcome to this public hearing.

2                My name is Barbara Cram, and I am the Regional Commissioner for Manitoba and Saskatchewan.  I will be presiding over this hearing.

3                Joining me on the Panel are my colleagues:  Helen del Val, Regional Commissioner for British Columbia and the Yukon; and Ronald Williams, Regional Commissioner for Alberta and the Northwest Territories.

4                The Commission team assisting us includes:  Manager of English Radio Operations, Joe Aguiar, in the middle, also acting as the Hearing Manager; William Howard, Senior Legal Counsel, on the left closest to our table; and Gary Krushen, Director of the Western and Northern Regions, who is also acting as Hearing Secretary.

5                Please speak with Mr. Krushen if you have any questions regarding procedure.

6                At this hearing the Commission will examine the apparent failure of Harmony Broadcasting, the licensee of the instructional campus radio station CJWV‑FM Winnipeg, to comply with certain sections of the Radio Regulations, 1986 and conditions of licence.

 

7                Au cours de cette audience, le conseil examinera le non‑conformité apparente de la titulaire de la station de radio de campus d'enseignement, CJWV‑FM Winnipeg, Harmony Broadcasting, relative à certains articles des Règlements de 1986 sur le radio et à certaines de ses conditions de licence.

 

8                Following the receipt of complaints alleging CJWV‑FM's non‑compliance with its conditions of licence and elements of the Campus Radio Policy, our staff requested that Harmony Broadcasting provide logger tapes for the week of April 17‑23, 2005.

9                However, the licensee failed to submit the requested material.  Harmony Broadcasting was then notified by staff that its failure to respond to the request constituted a violation of sections 8(4), 8(5) and 8(6) of the Radio Regulations.

10               The Commission staff made further requests to obtain the logger tapes for the week in question, which were finally produced on 20 June 2005.

11               The examination conducted by staff revealed an apparent non‑compliance with section 2.2(8) of the Regulations as the level of Canadian content broadcast by the licensee was 31 percent instead of the regulatory minimum of 35.

12               The examination also revealed shortfalls relating to the following three conditions of licence:

13               (1) the licensee broadcast a level of 4.73 percent category 3 music instead of the weekly minimum of 5 percent;

14               (2) the licensee broadcast a weekly level of .83 percent news instead of the weekly minimum of 4 percent;

15               (3) and the absence of any formal education programming, despite its condition of licence to broadcast a minimum of two hours of such programming.

16               In an attempt to conduct a second review of the station's programming, Commission staff requested broadcasting material for the week of January 29 to February 4, 2006.  This material was never received, which again constitutes a violation of sections 8 and 9 of the Radio Regulations.

17               Additionally, the Commission notes issues relating to Harmony Broadcasting's operation as an instructional campus radio station, as set out in the Campus Radio Policy.

18               Consequently, as stated in Broadcasting Notice of Public Hearing CRTC 2006‑8, and pursuant to section 12 of the Broadcasting Act, Harmony Broadcasting must show cause as to why a mandatory order should not be issued by the Commission.  Such an order would require the licensee to conform with the Regulations relating to Canadian content and its conditions of licence regarding the broadcasting of Category 3 music, news and formal education programming.

19               I will now invite the Secretary, Mr. Krushen, to explain the procedures we will be following.

20               Mr. Krushen.

21               THE SECRETARY:  Thank you, Madam Chair.

22               Before beginning, I would like to go over a few housekeeping matters to ensure the proper conduct of the hearing.

23               When you are in the hearing room, we would ask that you please turn off your cell phones, pagers, Blackberries and other electronic devices as they can cause an unwelcome distraction for participants and Commissioners and they cause interference on the internal communication system used by the translators.  We would appreciate your co‑operation in this regard throughout the hearing.

24               We expect the hearing to take approximately half a day, with a break in the morning.  We will let you know of any scheduled changes that may occur.

25               The Prairie Room will serve as examination room where you can examine the public files pertaining to the proceedings being considered at this hearing.  The Prairie Room is located one floor above us, on the 12th floor.  As indicated in the agenda, the telephone number of the examination room is 984‑8078.

26               There is a verbatim transcript of this hearing being taken by the court reporter at the table in front of me.  If you have any questions on how to obtain all or part of the transcript, please approach the court reporter during the break.  Please note the full transcript will be made available on the Commission's website shortly after the conclusion of the hearing.

27               Finally, simultaneous translation is available during the hearing.  You can obtain a translation receiver through the technician at the back of the room.  The English interpretation is on Channel 1 and the French is on Channel 2.

28               The Commission will proceed with the hearing of these matters as follows.

29               First we will hear from the licensee, who will be granted 20 minutes to make his presentation.  Questions from the Commission will follow each presentation.

30               In Phase II the only intervenor to appear at this hearing will present his intervention, and ten minutes will be allowed for his presentation.  Again questions from the Commission may follow.

31               Phase III provides an opportunity for the licensee to reply to all the interventions submitted on these matters.  Ten minutes are allowed for this reply and again questions may follow.

32               Now, Madam Chair, we will now examine the complaints regarding Harmony Broadcasting Corporation, licensee of the instructional campus radio programming undertaking CJWV‑FM Winnipeg, concerning its non‑compliance with the station's conditions of licence included in CJWV‑FM Winnipeg‑Licence renewal, Broadcasting Decision CRTC 2004‑340 and elements of the Campus Radio Policy as set out in Public Notice CRTC 2001‑12.

33               Appearing for the licensee is Mr. Franc Capozzolo.  You will have 20 minutes to make your presentation

34               Mr. Capozzolo, please introduce the gentlemen with you.

35               Thank you.

PRESENTATION / PRÉSENTATION

36               MR. CAPOZZOLO:  Thank you, Mr. Krushen.

37               To my left is my legal counsel today.  His name is William Tweed, of Abrams & Tweed.

38               MR. TWEED:  Commissioners, Madam Chair, I would like to make a very brief overview of the licensee's response to the inquiry in this hearing.

39               First off, there is no doubt that the licensee was not in compliance with the regulations during the times in question.

40               The licensee has now brought themselves into compliance and they are fully in compliance with the Regulations and, in particular, the Public Notice CRTC 2000‑12 dealing with campus stations instructional.

41               This organization began as a very small organization that was perhaps under‑funded and under‑staffed.  Mr. Capozzolo, the CEO, wore a multitude of hats.  He was the CEO, the office manager, the broadcaster, the programmer, the teacher‑mentor, the janitor.  He had all of the roles with little help.  He had some volunteers.  He had people that were inexperienced in assisting him.

42               The regulatory non‑compliance came as a result of him not giving the Regulations the attention that they are due.  He had assistants helping him with that, and he didn't provide adequate supervision to ensure that they were interpreting the Regulations correctly and following them as they are required to do.

43               Those issues have been addressed and he is now and will undertake to make sure that he stays in compliance with the Regulations.

44               The question of the school and the instructional aspect of the school proved to be a much greater challenge than he originally anticipated.  The road to accreditation in getting into a position where he can actually take on the classes and get an accredited course presented for students proved to be a much bigger challenge than was originally anticipated.

45               As the Commission is aware and with documents that have been filed, he now has an association with Robertson College of Winnipeg.  Finally, in July of this year, he received accreditation and approval from Manitoba's regulator of private vocational institutes and he is now fully accredited and able to present the course that he is planning.

46               We are now in a position to go out and solicit students to commence the first full formal class, which is scheduled to commence in January.

47               They have from the outset intended to be a training institution.  They originally set up the facility.  They built training labs, studio simulators and worked at writing the curriculum that has subsequently been approved.

48               During the period of time between the beginning and now, they have carried out mentorship programs with other people, people who had an interest in becoming broadcasters or working in the broadcast industry.

49               Those people started as volunteers.  Some of them continued to get partially paid at an entry level as entry level employees, and some of them have gone on into commercial careers with broadcasters.  They received mentorship and training in announcing, promoting, marketing, advertising, sales and various other things that people in the industry would be expected to require.

50               As I indicated earlier, the programming that is required, requiring the various levels of Canadian content and the types of music, the station is now in full compliance.

51               There has been some question about the board of directors.  The list of directors was filed with the Commission on June 24, 2005.  It is in the public record.  That list is current and it is the same people that are on the board of directors, with the exception of one Mr. Dryden, who was one of the people that was being mentored and is no longer associated with the school.  So he is no longer a director.

52               Other than that, the directorship of the corporation is as per that submission that was done a little over a year ago.

53               In summation, the challenges of setting up the instructional campus radio proved to be a little bit more daunting than was originally anticipated, and the shortage of resources, both in money and time, have caused a slipping through the cracks, if you will, of the lack of supervision that should have taken place to ensure the compliance with the Regulations was maintained.  It wasn't.  The system had problems.  They have been corrected and we do not expect to have the station receiving any further concerns from the CRTC for non‑compliance.

54               I have raised some of the issues that I think have been addressed in the submissions.  If you would like any more detailed information about any of those, I would defer to Mr. Capozzolo who would be familiar and be able to answer your questions.

55               Thank you.

THE CHAIRPERSON:  Thank you, Mr. Tweed.

56               This is now the time for questions by the Panel.

57               I will be asking questions regarding breaches of the Regs and conditions of licence.  My colleague Commissioner del Val will be asking questions about formal education, alternative programming, the board and the educational affiliation.  My colleague Commissioner Williams will be discussing the issue of what you have done and intend to do in the future to remedy the alleged breaches.

58               I wanted to start first ‑‑ and we can shorten things up fairly quickly, Mr. Tweed and Mr. Capozzolo, although I don't know who to address this to.

59               Your response to the CAB intervention, dated September 15, 2006, at the penultimate paragraph on page 3, states:

"Harmony Broadcasting admits it was not in compliance with the Radio Regulations."

60               I want to be specific about that.

61               The issue is there are two breaches in relation to logger tapes, and that is section 8(4)(3)(6) and section 9 of the Radio Regulations.

62               Then there is a further breach in relation to Canadian content, and that is section 2.2(8), in that the Canadian content was 31 percent as opposed to 35.

63               Are you admitting to all three of those breaches?

64               MR. CAPOZZOLO:  Can you give them to me one more time, please.

65               THE CHAIRPERSON:  Give them to you again?

66               MR. CAPOZZOLO:  Yes, the three breaches.

67               THE CHAIRPERSON:  The first one was failure to supply logger tapes, and that is the demand for 17‑23 April 2005.  That is a breach of section 8(4) through (6): that upon request and within the time limit required, you shall supply the logger tapes.

68               Do you agree that you have breached that section in relation to that request?

69               MR. CAPOZZOLO:  Yes.

70               THE CHAIRPERSON:  The second one was a further request for logger tapes for the period of 29 January 2006 through 4 February 2006.

71               Do you agree that you violated that and that it was never supplied?

72               MR. CAPOZZOLO:  Yes.

73               THE CHAIRPERSON:  The third violation of the Regs is upon monitoring the tapes that were received for the period of 17‑23 April 2005, the Canadian content was 31 percent instead of the regulatory minimum of 35 percent.

74               MR. CAPOZZOLO:  Yes, they were.

75               THE CHAIRPERSON:  You admit to that.

76               MR. CAPOZZOLO:  Yes.

77               THE CHAIRPERSON:  I want to then go into your COLs, your conditions of licence.

78               This again is in terms of the monitoring of the tapes that we did receive from you for the period of 17‑23 April 2005, the staff assessment referred to news being at a rate of .83 percent.

79               Do you agree with that?

80               MR. CAPOZZOLO:  Yes, they were.

81               THE CHAIRPERSON:  And there was a condition of licence that you would provide 5 percent of news.

82               MR. CAPOZZOLO:  That is correct.

83               THE CHAIRPERSON:  And you agree that you are in breach.

84               MR. CAPOZZOLO:  Yes.

85               THE CHAIRPERSON:  The second one is in relation ‑‑ and again this is in reference to the staff monitoring ‑‑ to the category 3 music.  You agree that the monitoring assessment found that you had 4.73 percent of category 3 music.

86               MR. CAPOZZOLO:  Yes.

87               THE CHAIRPERSON:  And you agree that the condition of licence required of you is 5 percent.

88               MR. CAPOZZOLO:  Correct.

89               THE CHAIRPERSON:  And the same with your category ‑‑ well, we have talked about your category 2 music.

90               That seems to be all of my questions.  I now turn it over to Commissioner del Val.

91               Thank you, Mr. Capozzolo and Mr. Tweed.

92               MR. CAPOZZOLO:  Thank you.

93               COMMISSIONER del VAL:  Mr. Capozzolo and Mr. Tweed, as the Chair indicated, I will be talking to you about elements of the Campus Radio Policy and your exchange this morning has clarified some issues.  Thank you.

94               On your opening statement, Mr. Tweed, you said that it was very difficult getting the accreditation and finally it was July of this year that you have now become accredited.

95               Is that right?

96               MR. CAPOZZOLO:  Actually, the curriculum was approved this past July.  I am involved with an accredited institution, and the curriculum which I put together was submitted by that institution, Robertson College.

97               COMMISSIONER del VAL:  Who submitted the application for accreditation then?

98               MR. CAPOZZOLO:  I think that was just a misunderstanding.  We submitted the curriculum, the broadcast curriculum, through Robertson College.  It had to be approved by the Private Vocational Institutions Branch of the Board of Education.

99               It was finally approved this past July.

100              COMMISSIONER del VAL:  So what is the name of the entity that became accredited?

101              MR. CAPOZZOLO:  Robertson College.  They have accreditation.  It is just that the course was approved.

102              COMMISSIONER del VAL:  All right.

103              So that is as of July of 2006.  Right?

104              MR. CAPOZZOLO:  Correct.

105              COMMISSIONER del VAL:  This means that prior to July of 2006 there was no such accreditation.

106              Is that correct?

107              MR. CAPOZZOLO:  Correct.

108              COMMISSIONER del VAL:  Am I jumping too far to say that the issue of whether you did comply up to July of 2006 is still alive?

109              I will simplify the question.

110              Did you then comply with the requirement under the campus policy of needing to be associated with a post secondary education institution prior to July of 2006?

111              MR. CAPOZZOLO:  Yes, I was associated with Robertson College prior to that date.

112              COMMISSIONER del VAL:  At the time of licence renewal, which was September 1, 2004 until now, were there any periods of non‑compliance with the requirement that you be associated with a post secondary institution?

113              MR. CAPOZZOLO:  No.  I was actually associated with another post secondary, Winnipeg South Technical College.  Unfortunately, that relationship had to come to a close in September of 2004 based on a bad business relationship that affected the relationship with the school.

114              Then I had to find a new school to be associated with and that took some time, a few months.  Then Robertson College came on board.

115              COMMISSIONER del VAL:  During those few months when you were looking for a college, you didn't have an association with a post secondary education institution.  Right?

116              MR. CAPOZZOLO:  No.  There would have been a three‑month period where I did not.

117              COMMISSIONER del VAL:  So for three months, then, there was not any compliance with the requirement that the station be associated with a post secondary education institute.

118              Is that right?

119              MR. CAPOZZOLO:  I did make the Commission aware that I was in search of such a relationship.

120              COMMISSIONER del VAL:  Yes.  But during the search, for those three months there was no association in place.

121              MR. CAPOZZOLO:  That is correct.

122              COMMISSIONER del VAL:  I would like to talk about the formal education programming that provides some academic instruction, which is a requirement under the campus policy.

123              MR. CAPOZZOLO:  Yes.

124              COMMISSIONER del VAL:  You are aware that that was in Decision 2004‑340, I think, where your licence was renewed.  That referred to the conditions in Public Notice 2000‑156, which is the new licence form for campus radio stations, of November 16, 2000.

125              Is that right?

126              MR. CAPOZZOLO:  Correct.

127              COMMISSIONER del VAL:  In there one of the conditions of licence, No. 13, is that there be two hours per broadcast week to provide formal educational programming that provides academic instruction.

128              Do you agree with that?

129              MR. CAPOZZOLO:  Yes, I do.

130              COMMISSIONER del VAL:  The logger tapes that you provided of the station's broadcasts from April 17‑23, 2005, that is an exact copy of the station's broadcasts during that week.

131              Is that correct?

132              MR. CAPOZZOLO:  Yes, it is.

133              COMMISSIONER del VAL:  What formal educational programming that provides academic instruction during that week will be contained in that logger tape that you have submitted.

134              Is that correct?

135              MR. CAPOZZOLO:  Can you repeat that, please.

136              COMMISSIONER del VAL:  The logger tapes will contain all of the broadcasts for that week.

137              MR. CAPOZZOLO:  Yes.

138              COMMISSIONER del VAL:  And therefore would contain all of the formal educational programming that provides educational instruction during that week.

139              Is that correct?

140              MR. CAPOZZOLO:  What I believe at the time was educational.

141              COMMISSIONER del VAL:  I think there is some correspondence where staff has indicated to you that according to our analysis, there is no such programming disclosed by the logger tapes that would qualify as formal educational programming that provides academic instruction.  Right?

142              MR. CAPOZZOLO:  Yes.

143              COMMISSIONER del VAL:  You have replied in your letter of November 17th with your interpretation.

144              Do you still take the position that you did provide formal educational programming?

145              MR. CAPOZZOLO:  What I believed to be formal educational programming at the time.  At this time I would like to take this opportunity to say a few things.

146              First and foremost, I would like to apologize to the Commission if my failure to submit these logger tapes was seen as a signal of disrespect or arrogance.  Nothing of the kind was ever intended.

147              Mr. Tweed basically summed it up when he said too few people, too few resources.  Although I have been in the radio industry and have worked for the biggest companies in the country for 30 years, I have no reason or desire to break conditions of licence.

148              I have worked at the programming end of this business for 20 years, and during that time I made sure that we were in compliance as required by regular commercial radio.

149              However, this is a different beast.  I didn't have the necessary resources to have regulatory counsel, and therefore I interpreted some of these regulations as this would count, this would count.

150              For example, with news, I was never aware that news about sports or news about entertainment didn't count as news.

151              COMMISSIONER del VAL:  Thank you.

152              We appreciate your candour because it shortens the hearing.

153              MR. CAPOZZOLO:  Yes.

154              COMMISSIONER del VAL:  Is it your admission now that then you did not provide formal educational programming, as required by the Campus Radio Policy?

155              MR. CAPOZZOLO:  That is correct.

156              COMMISSIONER del VAL:  I will jump to the directors and officers and then perhaps after that come back to try and learn a bit more about the association that you now have with Robertson College.

157              MR. CAPOZZOLO:  All right.

158              COMMISSIONER del VAL:  I am looking at your current list of directors and officers as you have kindly provided in your letter of June 24, 2006, and you made the correction today that Mr. Dryden, the student, has now resigned.

159              Is that correct?

160              MR. CAPOZZOLO:  Yes, he is no longer with us.

161              COMMISSIONER del VAL:  So that is the only change to the list.

162              MR. CAPOZZOLO:  Yes.  This is actually quite recent, I believe two or three weeks ago.

163              COMMISSIONER del VAL:  I just want to confirm that on my list you have Mr. Trevor Hawkes, who is a community representative appointed as of January 22, 2005, for a three‑year term.

164              MR. CAPOZZOLO:  Yes.

165              COMMISSIONER del VAL:  Then Angela Cieslak, a volunteer appointed as of January 22, 2005, for a three‑year term.

166              MR. CAPOZZOLO:  Right.

167              COMMISSIONER del VAL:  Ronald Taylor, College of Faculty representative appointed as of January 22, 2005, for a three‑year term.

168              Kenneth Penner, a college representative, appointed as of June 1, 2005, for 1.66 years.

169              MR. CAPOZZOLO:  Yes.

170              COMMISSIONER del VAL:  Devol Dryden, student, who has now left you.

171              MR. CAPOZZOLO:  Yes.

172              COMMISSIONER del VAL:  Roxanne Taylore, who is a volunteer.  January 22, 2005 was the date of her appointment, for a two‑year term.

173              Myles Shatsky, community representative.  June 22, 2005 was the date of appointment, for a one‑year term.

174              Then Warren Kowalson, student, appointed as of June 1, 2005, for .66 years.

175              And yourself, appointed as of January 22, 2005.

176              Is that correct?

177              MR. CAPOZZOLO:  That is correct.

178              COMMISSIONER del VAL:  Mr. Warren Kowalson, appointed as of June 1, 2005, for .66 years, or eight months, from June 1, 2005, would have expired as of March 2006.

179              Is that correct?

180              MR. CAPOZZOLO:  I believe that might be the case, yes.

181              COMMISSIONER del VAL:  So now with the departure of Mr. Dryden, you will again have no student representatives on the board.  Is that correct?

182              MR. CAPOZZOLO:  Mr. Kowalson is still on the board.  We just haven't gone through the formalities of doing it through the minutes.

183              He is still with us, Mr. Kowalson, but he is now part of the staff.

184              COMMISSIONER del VAL:  So is Mr. Kowalson a student?

185              MR. CAPOZZOLO:  He was a student.  He was a student for a year.

186              COMMISSIONER del VAL:  All right.

187              So then you don't have any representative from the student body again.

188              MR. CAPOZZOLO:  Not at this time.  We are scheduled for our first intake for January 9, 2007.

189              COMMISSIONER del VAL:  What is the first intake?  Is it the first enrolment of students?

190              MR. CAPOZZOLO:  Yes.

191              COMMISSIONER del VAL:  And when is that happening?

192              MR. CAPOZZOLO:  January 9th.

193              COMMISSIONER del VAL:  So how did you comply with the requirement that there be a student representative on the board prior to your first intake?

194              MR. CAPOZZOLO:  I tried to live up to the spirit of the Regulations until I could get de facto in compliance with the school.  Therefore, there were people that we mentored and when they became proficient enough, they became part of the staff.

195              COMMISSIONER del VAL:  Who of the current list of directors are employees?

196              MR. CAPOZZOLO:  Mr. Kowalson, myself and that is it on this list.

197              COMMISSIONER del VAL:  Going back to Mr. Dryden, is he still with the board?

198              MR. CAPOZZOLO:  No, he is not.  His position was terminated.

199              COMMISSIONER del VAL:  Would you admit that there is currently, as we speak, non‑compliance with the expectation that there be a balanced board, including representation from the student body?

200              MR. CAPOZZOLO:  Well, until we get a student body I don't know how that would be possible.  Right now we are waiting to ‑‑ we could look at this period of time as a summer period maybe.  We do intend to have a representative of the student body once we get a student body to be able to select from.

201              COMMISSIONER del VAL:  At this moment you don't have a student representative.

202              MR. CAPOZZOLO:  That would be Mr. Kowalson.  He is not actually a student at this time, but he represents having been a student.

203              COMMISSIONER del VAL:  But he is not a student right now.

204              MR. CAPOZZOLO:  No.

205              COMMISSIONER del VAL:  So right now you don't have a student representative.

206              MR. CAPOZZOLO:  Right now we don't, no.

207              COMMISSIONER del VAL:  At the time you applied for renewal ‑‑ and the application was, I think, dated October 23 of 2003.

208              MR. CAPOZZOLO:  Yes.

209              COMMISSIONER del VAL:  The board that you had submitted then consisted of Mr. Hawkes, Mr. Doug Kurtz, Ms Janet Capozzolo, Ms Roxanne Taylore, Mr. Myles Shatsky, Mr. Ron Taylor and yourself.

210              Is that correct?

211              MR. CAPOZZOLO:  I do believe, yes.

212              COMMISSIONER del VAL:  And that was October 23, 2003.

213              MR. CAPOZZOLO:  Yes.  At that time we had an association with Winnipeg South Technical.  Mr. Kurtz was a representative of that school at the time.

214              COMMISSIONER del VAL:  I am looking at the corporate returns that you filed with the Manitoba Companies Office, where you notified them of the directors and officers of the company.

215              MR. CAPOZZOLO:  Right.

216              COMMISSIONER del VAL:  The 2004 return certifying the information to be correct as of January 30, 2004, disclosed three directors:  Mr. Peter Bjorklund, Paula Bjorklund, Manjit Blakr.  And it also showed that they were appointed as of January 29, 2004.

217              I know that a year later, with the amended 2004 return that was signed on January 14, 2005, certifying the information to be correct as of January 14, 2005, a year later, there were three directors:  yourself, Trevor Hawkes and Janet Capozzolo, and that those basically replaced Peter and Paula Bjorklund and Manjit Blakr as of the same day.

218              That is part of the sale of the station?

219              MR. CAPOZZOLO:  Mr. Tweed will answer that question.

220              MR. TWEED:  At that time in the history there was the disagreement over what the agreement was between the parties.  That registration with the Corporations Branch was made without the knowledge or consent of the corporation, and it was subsequently withdrawn.

221              Those three people were never officially directors.

222              COMMISSIONER del VAL:  Okay.  That makes sense because the 2004 amended return, which was filed as of January 14, 2005, corrected the information that was filed with the original 2004 return.

223              MR. TWEED:  Yes.  There was no authority for that filing.

224              COMMISSIONER del VAL:  The correct return is the 2004 amended return that Mr. Capozzolo filed as of January 14, 2005.

225              Is that right?

226              MR. TWEED:  Yes.  And I believe in the circumstances we weren't aware of the incorrect filing.

227              COMMISSIONER del VAL:  That is right.

228              On January 14, 2005, Mr. Capozzolo said that as of January 29, 2004 there are three directors:  Mr. Franc Capozzolo, Trevor Hawkes and Janet Capozzolo.

229              Is that correct?

230              MR. CAPOZZOLO:  Correct.

231              COMMISSIONER del VAL:  That was four months after you filed your application with the CRTC naming, I think, seven as directors.

232              MR. CAPOZZOLO:  Yes.  These particular individuals tampered with and interfered with the existing board members.  Therefore, I took it down to the three officers of the board because people were intimidated and threatened.

233              COMMISSIONER del VAL:  So you took it down to three.

234              The Campus Radio Policy requires balanced representation amongst: (1) student body; (2) associated college; (3) station volunteers; and (4) community at large.

235              So if I do a body count, I think you would need four to meet the Campus Radio Policy requirement.  Right?

236              MR. CAPOZZOLO:  My understanding at the time, because there was some legal haggling involved, is that you need three board members to actually be legal.

237              COMMISSIONER del VAL:  I think the three is a requirement under your Manitoba Corporations Act.  I am talking about the CRTC regulation of the Campus Radio Policy requiring a board that has balanced representation amongst those four groups.

238              To comply with the Manitoba Corporations Act you would need three, but to then additionally comply with the Campus Radio Policy you would need a body count of four.

239              Is that correct?

240              MR. CAPOZZOLO:  Correct.  However, the other members of the board were frightened away by the behaviour of those particular individuals.

241              COMMISSIONER del VAL:  It is a fact that there were only three directors.

242              MR. CAPOZZOLO:  Yes, it is.

243              COMMISSIONER del VAL:  How did the three meet the requirements of balanced representation as amongst student body, the college, station volunteers and community at large as expected by the campus policy?

244              MR. CAPOZZOLO:  Once again, that was during the period of time when I was looking to establish an association with an accredited college.  It wasn't a period of time that we purposely decided to run with three members.  We had to re‑establish a board.

245              COMMISSIONER del VAL:  So there was a period, unfortunately, of non‑compliance.

246              MR. CAPOZZOLO:  Unfortunately, yes.

247              COMMISSIONER del VAL:  I will go back to the association with Robertson College right now.

248              I know, Mr. Tweed, you referred in your letter of September 15th to us that there was a filed copy of the association agreement.

249              MR. CAPOZZOLO:  Yes, there is.  I filed it with the director, Mr. Krushen.

250              COMMISSIONER del VAL:  Do you have a copy with you now?

251              MR. CAPOZZOLO:  I'm sorry, I didn't bring one.  I thought because it had been filed, it was already here.

252              COMMISSIONER del VAL:  Could you file it again, please.

253              MR. CAPOZZOLO:  Okay.

254              COMMISSIONER del VAL:  What is the date of that agreement?

255              MR. CAPOZZOLO:  I don't recall; I'm sorry.

256              COMMISSIONER del VAL:  Maybe more importantly what is the effective term of that agreement?

257              MR. CAPOZZOLO:  The effective term, the approval to the curriculum was given on a one‑year basis and will be reviewed by the Private Vocational Institutions Branch of the Board of Education.

258              The agreement with the college I believe is three years.

259              COMMISSIONER del VAL:  Mr. Tweed, do you think your client could file the agreement to evidence the association with the college, if there is one?

260              MR. CAPOZZOLO:  We prefer that be kept confidential.  We have submitted it to the Commission, but there is proprietary information that we prefer to keep private in the document.

261              COMMISSIONER del VAL:  You can file on a confidential basis.

262              MR. CAPOZZOLO:  Yes.

263              COMMISSIONER del VAL:  And request confidentiality at the time of filing.

264              MR. CAPOZZOLO:  May I ask Mr. Krushen if it is still on file?

265              THE SECRETARY:  I believe that we do have that on file, but because it was submitted to me on a confidential basis it is not part of the record of this proceeding.

266              MR. CAPOZZOLO:  Okay.

267              COMMISSIONER del VAL:  I am turning to your letter of June 24, 2005 to the Commission, Mr. Capozzolo, and I am not clear on what and who is the Winnipeg Broadcast Training Centre and the association between the radio station and the Robertson College.

268              Could you explain the whole relationship, please.

269              MR. CAPOZZOLO:  Until we got into compliance with an accredited institution, as I mentioned earlier I tried to live up to the spirit of the Regulations.  We did provide some short‑term courses under the Private Vocational Institutions Act.  You are allowed to provide courses that are $250 or less for a period of six to eight weeks.

270              COMMISSIONER del VAL:  When you say "we" here, what entity are you referring to?  Is it the radio station, the Winnipeg Broadcast ‑‑

271              MR. CAPOZZOLO:  The whole thing.  I am involved with all aspects of Harmony Broadcasting, as well as the Broadcast Training Centre is what we refer to as the radio/labs that house the labs portion of the curriculum with Robertson College.

272              So we just refer to it as the Broadcast Training Centre.

273              COMMISSIONER del VAL:  So is Robertson College part of the Winnipeg Broadcast Training Centre?

274              MR. CAPOZZOLO:  How do you mean that?

275              There is a numbered company that is the go‑between between Harmony Broadcasting and Robertson College.

276              COMMISSIONER del VAL:  Mr. Capozzolo, I don't know who Winnipeg Broadcast Training Centre is.  That is my problem.

277              MR. CAPOZZOLO:  That would be me.

278              COMMISSIONER del VAL:  Okay.  Is it a different entity from the station, from our licensee?

279              MR. CAPOZZOLO:  Yes.  It is a for profit.

280              COMMISSIONER del VAL:  Then the association agreement is not directly between the radio station, our licensee, and Robertson College.

281              MR. CAPOZZOLO:  That is correct.

282              COMMISSIONER del VAL:  What role does ‑‑ I will back up.

283              The entity that is accredited is Robertson College ‑‑

284              MR. CAPOZZOLO:  Yes.  The Broadcast Training Centre owns the curriculum.

285              COMMISSIONER del VAL:  Okay.  Is there any formal agreement between the licensee and the Winnipeg Broadcast Training Centre?

286              MR. CAPOZZOLO:  Yes, there is a long‑term agreement.  And the training centre has subcontracted to Robertson College.

287              COMMISSIONER del VAL:  Who provides the radio station with educational programming?  Which entity does that?

288              MR. CAPOZZOLO:  I'm not quite sure.

289              COMMISSIONER del VAL:  I'm sorry.

290              MR. CAPOZZOLO:  It is just programming.

291              COMMISSIONER del VAL:  I am going to be asking you two questions.

292              MR. CAPOZZOLO:  Okay.

293              COMMISSIONER del VAL:  The first question is:  What role does the Winnipeg Broadcast Training Centre play in helping Harmony, the radio station, provide formal educational programming?

294              The second question is the same question but what role does Robertson College play?

295              MR. CAPOZZOLO:  The numbered company ‑‑

296              COMMISSIONER del VAL:  Which is the numbered company?

297              MR. CAPOZZOLO:  We will call it the Broadcast Training Centre.

298              That is a go‑between, if you will, or is a contractor to Robertson College.  That training centre provides the labs and facilities where students will record their homework or their assignments and work with the equipment and that will then be provided to Harmony Broadcasting for other use.

299              COMMISSIONER del VAL:  When you say the numbered company, what is the legal name of that company?

300              MR. CAPOZZOLO:  At this time it is just a numbered company.

301              COMMISSIONER del VAL:  I know.  What is the number?

302              You could provide that.

303              Could you please provide that as an undertaking?

304              MR. CAPOZZOLO:  Yes.

305              COMMISSIONER del VAL:  Thank you.

306              By the end of the day?  Is that doable?

307              MR. CAPOZZOLO:  Yes, that is doable.

308              COMMISSIONER del VAL:  That numbered company has been incorporated?

309              MR. CAPOZZOLO:  Yes.

310              COMMISSIONER del VAL:  Could you provide the incorporation document with the directors and officers, please?

311              MR. CAPOZZOLO:  Okay.

312              COMMISSIONER del VAL:  Again by the end of the day.  Is that doable?

313              MR. CAPOZZOLO:  Yes.

314              COMMISSIONER del VAL:  Thank you.

315              MR. TWEED:  I am not sure that we can get it by the end of the day, but we can certainly undertake to file it.

316              COMMISSIONER del VAL:  Okay, great.

317              Just give me a date that is reasonable for you.

318              MR. CAPOZZOLO:  A photocopy would be fine.  Right?

319              I could get that this afternoon.  The offices are very close.

320              COMMISSIONER del VAL:  Who are the directors and officers of the numbered company right now?

321              MR. CAPOZZOLO:  I am.

322              COMMISSIONER del VAL:  I know that you said that you have a first intake coming up for the program with Robertson College.

323              MR. CAPOZZOLO:  Yes.

324              COMMISSIONER del VAL:  What will be the number of students that you will take?

325              MR. CAPOZZOLO:  As many as humanly possible.  Ideally, 12 or better.

326              COMMISSIONER del VAL:  But the class size is about 12?

327              MR. CAPOZZOLO:  No.  The class size would preferably be 24, but you need a minimum of 12 to make it feasible.

328              COMMISSIONER del VAL:  What duties will the students be assigned at the station?

329              MR. CAPOZZOLO:  We ran into an issue with the Private Vocational Institutions people because somehow they have the perception that I was going to use the students as cheap labour to provide services to the station.

330              They will provide whatever it is that they can provide.  The more they can do, the more they will do.

331              COMMISSIONER del VAL:  Is there a part of the curriculum that is formal structured involvement at the station that will count toward their curriculum?

332              MR. CAPOZZOLO:  There will be assignments that could potentially be used on the air covering new stories, recording commercials, writing commercials.  We do have to be careful, according to the Private Vocationals people, that any work that generates revenue, that it be recompensed in some way.

333              COMMISSIONER del VAL:  Going back to the board, how are decisions concerning the radio station made?  Who makes those decisions?

334              MR. CAPOZZOLO:  Those decisions for the most part, up until this point, until we established a firm agreement with Robertson College, were made superficially in terms of informal meetings and just bringing the board up to date on what was going on.

335              There was very little to discuss other than maintaining economic viability.

336              COMMISSIONER del VAL:  And made amongst all of the individuals who were appointed to the board?

337              MR. CAPOZZOLO:  Yes.

338              COMMISSIONER del VAL:  Are the decisions carried?  Is it a majority vote?  How else are decisions carried?

339              MR. CAPOZZOLO:  Usually they are deferred to the Executive Director.

340              COMMISSIONER del VAL:  Who is the Executive Director?

341              MR. CAPOZZOLO:  That would be me as well.

342              COMMISSIONER del VAL:  Then you as the Executive Director, Mr. Capozzolo, you really have control over the station.

343              MR. CAPOZZOLO:  Well, control of the station in the sense that there are expenses that need to be met and I am entirely and wholly responsible for coming up with the revenue.

344              Therefore, we will vote on things that might require some assistance of the board members, that type of thing.

345              COMMISSIONER del VAL:  What about programming decisions?  Does that apply also to programming decisions?

346              MR. CAPOZZOLO:  Programming decisions are made and finalized.  The programming decision basically was to run the radio station as if it were a commercial entity, simply because we are training people to go work in the commercial radio environment.  Therefore, it wouldn't make sense to do anything other.

347              And this is something that was voted upon by the board.

348              COMMISSIONER del VAL:  Who made the decision, as you described, to run the radio station as a commercial entity?

349              MR. CAPOZZOLO:  The decision was made by the board.

350              COMMISSIONER del VAL:  In that case, did the board also defer to you as the Executive Director?

351              MR. CAPOZZOLO:  Yes.

352              COMMISSIONER del VAL:  So that is on the commercial station.

353              The Campus Radio Policy also has a requirement that the programming of the station be alternative and complementary programming.

354              MR. CAPOZZOLO:  Yes.

355              COMMISSIONER del VAL:  I note from Mr. Tweed's letter of September 15th that an overview of the programming is provided.

356              How do you fulfil that requirement?  How do you feel that the station meets the requirement of providing alternative and complementary programming given that alternative programming is defined under the policy as alternative music ‑‑ and the Chair has talked about the levels of requirement ‑‑ then educational programming, which I think you have just earlier also said that you don't meet that requirement?

357              MR. CAPOZZOLO:  We do now.

358              COMMISSIONER del VAL:  You do now.

359              MR. CAPOZZOLO:  Yes.

360              COMMISSIONER del VAL:  But up until ‑‑

361              MR. CAPOZZOLO:  Up until February when I was informed that the programming was in fact out of compliance.

362              COMMISSIONER del VAL:  Okay, great.

363              The news didn't either.  I guess the other one is spoken word.

364              MR. CAPOZZOLO:  With spoken word we were always in compliance.

365              COMMISSIONER del VAL:  Okay.

366              How do you comply now?

367              MR. CAPOZZOLO:  In terms of offering alternative programming, there is no radio station that I am aware of in the marketplace, or within the vicinity of this marketplace, that is a 100 percent Urban Music format.

368              We feel that is something that lacks in this marketplace.  It is something that is not financially viable in this marketplace, simply because of the smaller population of people of colour in Winnipeg, and Manitoba for that matter.

369              We felt that this would not infringe heavily on the existing or traditional broadcasters.

370              We also felt that this would be a format that would be appealing to those people that we hoped would take the course.

371              COMMISSIONER del VAL:  Thank you.

372              Is there any duplication of your format with any of the commercial FM stations in the same market?

373              MR. CAPOZZOLO:  There would be a percentage of the format.  A percentage of all formats is similar to other formats, simply by the nature of crossover heads.

374              COMMISSIONER del VAL:  Yes.

375              MR. CAPOZZOLO:  There are Country songs that appear on traditionally Rhythmic stations.  There is going to be Urban music or songs from the Urban world that will appear on Top 40 and Rhythmic based radio stations.

376              COMMISSIONER del VAL:  What percentage of overlap would you estimate there to be?

377              MR. CAPOZZOLO:  Roughly somewhere in the neighbourhood of 20 to 25 percent.

378              COMMISSIONER del VAL:  Going back to the board, how do you elect or appoint the members to the board?

379              MR. CAPOZZOLO:  Through a membership and the typical procedures governing boards, rules of order, et cetera.

380              COMMISSIONER del VAL:  But how do you find the individuals?  How do they come forward?

381              MR. CAPOZZOLO:  Through memberships, through invitation.

382              COMMISSIONER del VAL:  Memberships in what?

383              MR. CAPOZZOLO:  The board is elected through membership.  There have been a few elections.  Generally the board up until this time has gone through these various evolutions based on outside interference for the most part.  But that is certainly part of the process.

384              COMMISSIONER del VAL:  The members who elect the board, of what organization are they members?

385              They are members of which organization?

386              MR. CAPOZZOLO:  Harmony Broadcasting.

387              COMMISSIONER del VAL:  So Harmony Broadcasting is a non‑profit organization.

388              MR. CAPOZZOLO:  Correct.

389              COMMISSIONER del VAL:  How many members does it have?

390              MR. CAPOZZOLO:  Forty or so.

391              COMMISSIONER del VAL:  Pardon me?

392              MR. CAPOZZOLO:  Forty.

393              COMMISSIONER del VAL:  Forty.

394              MR. CAPOZZOLO:  Thereabouts.  It could be a little more or a little less; just enough to get that basis established.  Once we are in full swing with the school, then we have a more proper path to follow.  Right now we just followed ‑‑

395              COMMISSIONER del VAL:  But Harmony Broadcasting, the company, has only one shareholder.  Right?

396              MR. CAPOZZOLO:  Correct.  Well, there are no shareholders but I established the appropriation.

397              COMMISSIONER del VAL:  I can't figure out where the members came in.

398              MR. CAPOZZOLO:  I was told that I needed members, so I solicited friends and that type of thing to become members, to get the process moving as it should.

‑‑‑ Pause

399              THE CHAIRPERSON:  I think we will take our morning break now.  By my watch it is 10:35, so we will break for 15 minutes, until ten to 11:00.

400              MR. CAPOZZOLO:  Thank you.

‑‑‑ Upon recessing at 1035 / Suspension à 1035

‑‑‑ Upon resuming at 1055 / Reprise à 1055

401              THE CHAIRPERSON:  Thank you.  We will come back to the session.

402              Commissioner del Val.

403              COMMISSIONER del VAL:  Thank you.

404              I just want to find out a little bit more about your association with Robertson College.

405              MR. CAPOZZOLO:  Yes.

406              COMMISSIONER del VAL:  If I were a student interested in the broadcasting program, I know that I have looked on the Robertson College website and they are advertising a broadcasting program.  So I would approach Robertson College.

407              Then who do I pay if I want ‑‑

408              MR. CAPOZZOLO:  You would pay Robertson College.

409              COMMISSIONER del VAL:  I would get the credit from Robertson College.

410              MR. CAPOZZOLO:  Yes.

411              COMMISSIONER del VAL:  Where does Winnipeg Broadcast Training Centre come in?

412              MR. CAPOZZOLO:  It is just an entity to facilitate the relationship.

413              COMMISSIONER del VAL:  Does Robertson College pay the Winnipeg Broadcast Training Centre certain ‑‑

414              MR. CAPOZZOLO:  A portion of the students' fees help pay for the expenses associated with running a radio station.

415              COMMISSIONER del VAL:  These students would work or have some experience from the Harmony Broadcasting station?

416              MR. CAPOZZOLO:  Yes.  You could almost look at it as a campus per se.

417              Robertson College is in fact about a two‑to‑three minute walk from the radio station, where the radio station is located, and half of the floor ‑‑ Commissioner Cram, you have visited us.

418              Half of the floor is allocated to the educational aspect and the other half is the actual physical radio station.

419              COMMISSIONER del VAL:  To date, between the time of renewal on September 1, 2004 and now, there has not been any graduate yet from that.

420              MR. CAPOZZOLO:  No.

421              COMMISSIONER del VAL:  I think those are my questions; thank you very much.

422              Thank you, Madam Chair.

423              MR. CAPOZZOLO:  Thank you.

424              THE CHAIRPERSON:  I have a few little clean‑up questions.

425              So since there have been no students from, as my colleague said, September 2004 to now, and presumably until January 2007, you are in non‑compliance right now.

426              MR. CAPOZZOLO:  Right now, I believe that we are in compliance ‑‑ right now, yes.  We are associated with a school, and we are waiting for our first or next intake.

427              THE CHAIRPERSON:  Effective July of this year when you got approval from the Government of Manitoba ‑‑

428              MR. CAPOZZOLO:  Right.

429              THE CHAIRPERSON:  ‑‑ you consider that you are in compliance.

430              MR. CAPOZZOLO:  Yes.

431              THE CHAIRPERSON:  Even though there are no students doing any of the programming.

432              MR. CAPOZZOLO:  One follows the other, doesn't it?  I can't have students do my programming until I get some students.

433              THE CHAIRPERSON:  Well, if there are no students doing any programming, are you a campus station?

434              MR. CAPOZZOLO:  Yes, we are.  I do believe we are.

435              THE CHAIRPERSON:  Your assertion is because of this agreement with Robertson.  Is that right?

436              MR. CAPOZZOLO:  Yes.

437              THE CHAIRPERSON:  I wanted to go into that agreement.

438              You filed the agreement, you claim, in confidence.

439              MR. CAPOZZOLO:  Yes.

440              THE CHAIRPERSON:  Clearly you know our rules on confidentiality.

441              MR. CAPOZZOLO:  Yes.

442              THE CHAIRPERSON:  You have seen the relevant circular, I am sure, Circular 429.  The onus is on you to show that you have an agreement.

443              MR. CAPOZZOLO:  Right.

444              THE CHAIRPERSON:  So you must seek it.  We can't see anything that isn't on the public file.

445              So number one, you must provide us with your reasons for confidentiality.

446              Number two, you must tell us which portions of the agreement are subject to that confidentiality.

447              We will make a ruling whether or not it goes on the file and which portions of the agreement go on the file.

448              You will be informed in advance whether or not we have accepted your argument as to confidentiality.  You will be entitled to withdraw the whole agreement should we not accept your request for confidentiality.

449              MR. CAPOZZOLO:  Madam Chair, if it would simplify the process, the confidentiality is not a supreme issue.

450              THE CHAIRPERSON:  So you are withdrawing your claim to confidentiality?

451              MR. CAPOZZOLO:  I thought it was a simple process; I'm sorry.

452              Yes, I will withdraw it.

453              THE CHAIRPERSON:  You will withdraw your claim for confidentiality.

454              MR. CAPOZZOLO:  Yes.

455              THE CHAIRPERSON:  Thank you.

456              The other thing you were talking about is that your curriculum had to be approved by the Board of Education.

457              Could you file that approval with us within ten days of this hearing?

458              MR. CAPOZZOLO:  Yes.

459              THE CHAIRPERSON:  So I have your undertaking?

460              I do?  You have to say yes.

461              MR. CAPOZZOLO:  I'm sorry.

462              THE CHAIRPERSON:  I have your undertaking?  You have to say yes for the record.

463              MR. CAPOZZOLO:  Yes, you do.

464              THE CHAIRPERSON:  In your renewal, you referred to an agreement with Winnipeg Technical College, dated October 23, 2003: affiliation agreement finalized with post secondary institute, Winnipeg Technical College, October 23, 2003.

465              You will file a copy of that within ten days of this hearing?

466              MR. CAPOZZOLO:  Okay.

467              THE CHAIRPERSON:  You undertake to do so?

468              MR. CAPOZZOLO:  I undertake to do so.

469              THE CHAIRPERSON:  Commissioner del Val went through very well the issue of formal education.  However, I was left at the end wondering what you believe formal education now consists of.  And what are you doing now?

470              MR. CAPOZZOLO:  With regard to formal education, to be honest, I don't have a very clear‑cut idea what that is.  I researched what educational programming is to the rest of the world and try to deliver similar.

471              These would be educational subjects, geologists, naturalists, discussions about the environment, that type of thing.

472              THE CHAIRPERSON:  So you bring in people to talk about those issues.  Is that it?

473              MR. CAPOZZOLO:  Yes.

474              THE CHAIRPERSON:  Where are they placed during the day?

475              MR. CAPOZZOLO:  In the morning show.

476              THE CHAIRPERSON:  I forget, you have three hours in the morning show.  So it is part of that.  Is that the idea?

477              MR. CAPOZZOLO:  It is actually four hours.

478              THE CHAIRPERSON:  All right.

479              Can you also provide us with a copy of the agreement between Harmony and the Winnipeg Broadcast College; in other words, the numbered company?

480              MR. CAPOZZOLO:  All right.

481              THE CHAIRPERSON:  The arrangements between those.

482              You will do that within ten days from the hearing?

483              MR. CAPOZZOLO:  I will.

484              THE CHAIRPERSON:  Thank you.

485              You were to provide the numbered company incorporating documents, directors and officers.  Again there was no timing in that.

486              You will do that within ten days?

487              MR. CAPOZZOLO:  Yes.

488              THE CHAIRPERSON:  I wanted to get into Alternative programming.

489              What constitutes Alternative programming clearly would be category 3 music, because everybody likes category 2, the formal education, the news.

490              MR. CAPOZZOLO:  Okay.

491              THE CHAIRPERSON:  And of course the music.

492              Do you honestly think with a duplication rate of 20 to 25 percent with the Standard stations that that is Alternative?

493              MR. CAPOZZOLO:  Once again, I believe if we are training students to go out and work in the commercial radio environment, there are rules and regulations in every commercial radio station.  Some of the reasons why I was out of compliance was because the individuals or the students or volunteers who had previous college radio experience ‑‑ and substantial for some of them ‑‑ they were dropping Canadian music.  They were dropping category 3 music.

494              That is part of what is part of the commercial radio environment.  You have to follow format.  Commercial radio is about formatted radio.

495              THE CHAIRPERSON:  But you are not a commercial radio.

496              MR. CAPOZZOLO:  I am not.

497              THE CHAIRPERSON:  You are a campus instructional radio.

498              MR. CAPOZZOLO:  That is correct.

499              THE CHAIRPERSON:  You are supposed to have an Alternative format.

500              My question was:  Do you honestly believe with an overlap of 20 to 25 percent with an existing station in the market that that constitutes Alternative programming under the policy?

501              MR. CAPOZZOLO:  Do I personally believe that?  Yes, I do.

502              THE CHAIRPERSON:  Thank you.

503              Commissioner Williams.

504              COMMISSIONER WILLIAMS:  Good morning, Mr. Capozzolo and counsel.

505              MR. CAPOZZOLO:  Good morning.

506              COMMISSIONER WILLIAMS:  You stated earlier this morning that you have 30 years' experience as a broadcaster.

507              What roles did you perform during this long career in the broadcasting industry?

508              MR. CAPOZZOLO:  I have been an on‑air person.  I have been a music director.  I have been a program director.  I have been an operations manager and I have done commercial writing along the way.  I have worked in the promotions department.  Just about everything there is to do in a radio station, I have done it somewhere along the line.

509              COMMISSIONER WILLIAMS:  How would you reconcile that vast experience that you have just outlined with the comment from your lawyer that these errors were due to business inexperience?

510              MR. CAPOZZOLO:  These were the people that were working with me.

511              COMMISSIONER WILLIAMS:  People that you were training?

512              MR. CAPOZZOLO:  Yes.

513              COMMISSIONER WILLIAMS:  In your many years in the broadcasting industry you must have come across the concept of maintaining logger tapes before?

514              MR. CAPOZZOLO:  Yes, I have.

515              COMMISSIONER WILLIAMS:  Since these non‑compliance issues, that have been covered well earlier this morning by my colleagues and your admission that there is not a doubt that you were not in compliance, you state that you are now compliant or have been compliant since July.

516              Since these ‑‑

517              MR. CAPOZZOLO:  No.  I believe I was in compliance since February.

518              COMMISSIONER WILLIAMS:  Since February?

519              MR. CAPOZZOLO:  Yes.

520              COMMISSIONER WILLIAMS:  All right.

521              Since these occurrences, what have you done to ensure that logger tapes are maintained and will be available to furnish to the Commission upon request?

522              MR. CAPOZZOLO:  The fact of the matter is the logger tapes were always there.  I do have the logger tapes today.  The fact of the matter is I had to file accompanying paper work, and I just didn't have the ‑‑ excuse me.

‑‑‑ Pause

523              COMMISSIONER WILLIAMS:  I guess you are one of the few that didn't turn your Blackberry off.

524              MR. CAPOZZOLO:  I turned it off, but I turned it on during the break.  I will just turn it off again.

525              I'm sorry.  Could you repeat the question.

526              COMMISSIONER WILLIAMS:  Tell me what your process is now.  You said you had the logger tapes available.

527              MR. CAPOZZOLO:  I had the logger tapes.

528              COMMISSIONER WILLIAMS:  Have you made any changes since these occurrences?

529              MR. CAPOZZOLO:  I have made changes.  I have made changes to the way we do things.  I have instituted voice tracking, which will eliminate people dropping music that shouldn't be dropped.

530              I have instituted programming into the on‑air system that allows us to track news and spoken word without having to physically sit there and listen to a week's worth of programming to come up with these songs and times of how much we spend talking.

531              The fact of the matter is with regard to the February logger tapes, I received a letter on February 6th saying that I was in fact out of compliance.  That letter for some reason I thought might have been an error, and I had hoped that at some time along the way we could talk about it.

532              Basically on February 6th I was told I was out of compliance, and then it asked me to provide logger tapes previous to that date.

533              I do in fact have those logger tapes today.  They are on disc and available to the Commission, if you would wish.

534              COMMISSIONER WILLIAMS:  I will ask my colleague, Commissioner Cram, to deal with the issues from the past.  I am more interested in getting your information on what is happening from today forward or from the time you became compliant forward and policies and procedures and methods that you have in place to assure us that you in fact have the ability to be compliant in the future.

535              MR. CAPOZZOLO:  I simplified processes.  I have eliminated freedoms.  Turntablism was something that I was not familiar with in my vast years of experience.  This is a new process and a new thing for me, and I didn't know what it actually meant.

536              The individual who was in charge of that area assured me that we were compliant and I took his word for it.  Unfortunately, it was only his word and not based on reality.  Therefore, we ended up being out of compliance on the Canadian content, partly because what he believed to be Canadian content was in fact not Canadian content.

537              Therefore, those turntablism shows are now more monitored.  They are submitted in advance.  We only have one live such show per week and I compensate with increasing the Canadian content previous to that show.

538              With regard to the school, it is now in place.  Documents are signed, the curriculum approved, and we are just waiting to be able to execute.

539              Everything leading up to this, as far back as September 2004 ‑‑ I unwittingly got involved with some unseemly characters and that led to bad publicity in the newspaper, which caused Winnipeg South Technical, when we were going to sign off on the deal, to withdraw, which caused me to have to go out and look for another partner.

540              Basically everything up until now has been trying to get that school together.  It has been suggested that perhaps there is no interest in the school, which is ridiculous.  But it is a difficult process to sit down with a school organization and have them buy into what it is that you are selling them.

541              They just don't get into bed with anybody.  They have reputations to protect, et cetera.

542              Therefore, it has been a long process, a difficult process, to convince and to move this process along.

543              COMMISSIONER WILLIAMS:  Thank you.

544              I would like to move you back to the area of logger tapes.

545              You mentioned you have some programs and I guess some software to record and manage the logger tape issue more carefully.

546              Do you have any contingency plan to deal with any possible machine or software failures?

547              MR. CAPOZZOLO:  Actually, we are dealing with one right now as we speak.  Over night the on‑air system computer crashed, and we do have discs with the appropriate amount of Canadian content and whatever other category 3 songs or music that is required.

548              COMMISSIONER WILLIAMS:  Who in your organization is responsible for ensuring that logger tape equipment is functioning?

549              MR. CAPOZZOLO:  I am ultimately.

550              COMMISSIONER WILLIAMS:  So who is responsible right now?  You seem to be otherwise occupied today.

551              MR. CAPOZZOLO:  The people back at the radio station.

552              COMMISSIONER WILLIAMS:  Who in your organization is responsible for ensuring that regulatory Canadian content level is broadcast?

553              MR. CAPOZZOLO:  I am.  I am a big proponent of exposing Canadian talent.  It is my favourite thing to do.  I can't believe that this is even an issue for me.

554              I build the format clocks to a 40 percent Cancon level.  Unfortunately, due to some individuals' behaviour, if they are telling you they are playing the music, at this stage of the game I didn't have the resources to be able to have back‑up administrators to double‑check that this stuff was being in fact done.

555              I was told it was being done.  I took it on face value.

556              COMMISSIONER WILLIAMS:  So on a going forward basis, how are you going to manage that?

557              MR. CAPOZZOLO:  I have dismissed those people who repeatedly were responsible for that behaviour.  I have made it clear that that will not be tolerated.

558              I have built the clocks so that if there is music to be dropped, it doesn't end up being the Canadian content.

559              COMMISSIONER WILLIAMS:  The broadcasting of category 3 music is an important element in ensuring a range of music styles is offered, and it also ensures a level of diversity.

560              Can you tell us the measures that have been put into place to ensure future compliance in that area?

561              MR. CAPOZZOLO:  Once again, that is a category that I have over‑built, knowing that there would be complaints in the marketplace.  It sounds like a contemporary radio station.  I make no apologies.  But I don't believe it is of hindrance to anyone's ratings or ability to generate revenue in the marketplace.

562              Typically, we play somewhere between 7 and 10 percent category 3.  It is built into the clock.  It is not relegated to a night‑time category.  It plays through the course of the entire day.

563              Unfortunately, when you have inexperience and people who don't understand the meaning of "no", they will drop the songs that they found least appealing to them.

564              Unfortunately, it turns out to be those things that put us out of compliance.

565              COMMISSIONER WILLIAMS:  The station was found to have broadcast a weekly level of .83 percent news instead of a condition of licence level of 4 percent.

566              what specifically have you done to address this shortfall?  Tell me about who is responsible for the gathering, writing and announcing of the news.

567              MR. CAPOZZOLO:  Mr. Kowalson is responsible for the gathering of the news.  I along with Mr. Kowalson and another individual deliver the news.

568              We have a half‑hour newscast that is broadcast between 6:30 and 7 o'clock every day of the week, Monday to Friday.  We have eight minutes of previously recorded news that runs between 6:00 and 6:30 every day.  And we have three‑minute newscasts at 7:00, 7:30, 8:00, 8:30 and at 10:00.

569              That is over what we require.  I have over‑built in all things so that this doesn't become an issue.

570              COMMISSIONER WILLIAMS:  What are the typical sources for your news?

571              MR. CAPOZZOLO:  Newspapers, the Internet and television.  And those news items that are within range of the radio station, he will in fact go out and cover personally.

572              COMMISSIONER WILLIAMS:  What arrangements have you made to ensure that your weekly condition of licence to broadcast two hours of formal educational programming is met?  And what do you see as the topics of the formal educational programming that provides academic instruction?

573              MR. CAPOZZOLO:  With regard to academic instruction, I really don't know what that means, to be honest.  I know educational in the sense of social issues, conscious issues in the community, in the life group that we hope to attract.  They are educational in the sense that we speak to experts in those fields and ask questions that educate and instruct.

574              In terms of formal education programming on the radio, I don't know that that works in the 21st century.  There might have been a time when there are smaller communities and you can broadcast lessons over the radio.  I don't know that that is something that necessarily works today.

575              I really don't know if I have ever even heard educational programming on the radio in terms of formal academic instruction.  I wouldn't even know what that sounds like, to be honest.

576              I have visited PBS and talked to different people across the country and in the United States, and educational programming generally works out to mean issues that concern your community or the public at large.

577              COMMISSIONER WILLIAMS:  You covered the area of the board of directors quite thoroughly with Commission del Val earlier this morning, so I only have one question in that area.

578              How is each member chosen and appointed and for how long?

579              MR. CAPOZZOLO:  How is each member...

580              COMMISSIONER WILLIAMS:  When you select a member for your board, how is that member chosen, appointed and what is the duration of that appointment?

581              MR. CAPOZZOLO:  We have a nominating committee.  We generally try to follow the guidelines set out by the Regulations.

582              COMMISSIONER WILLIAMS:  Can you specifically tell us how this board would meet the campus policy; i.e., a requirement that the board include balanced representation?

583              I just need a bit information on that.

584              MR. CAPOZZOLO:  Well, balanced representation, the only shortfall or shortcoming would be the student until January 9th.

585              COMMISSIONER WILLIAMS:  I guess your answer is the same; okay.

586              In January when you are proceeding along with your plan, what duties will students have at the station?  Would it be part of their curriculum?

587              MR. CAPOZZOLO:  There seems to be a conflict between the province or the Regulations.  One of the issues that was raised was if students were used to generate revenue or used as a resource with the radio station.  So I plan to take that slowly so that I don't offend either body.

588              There are numerous things, news stories that can be gathered.  There is certainly editing with regard to music that can be done, interviews that can be done, hosting that will be done, all the things that a student can bring to the table.

589              COMMISSIONER WILLIAMS:  How about non‑students.  Do you currently offer opportunities for other members of the community to participate in the radio station?

590              MR. CAPOZZOLO:  Constantly.

591              COMMISSIONER WILLIAMS:  Can you provide an example?

592              MR. CAPOZZOLO:  We are not a community‑based campus, but we do have all manner of community‑based organizations, ranging from Jewish organizations to wildlife organizations to ‑‑ if it exists, we try to get it on the air.

593              COMMISSIONER WILLIAMS:  Madam Chair, that concludes my questioning for now.

594              THE CHAIRPERSON:  Thank you.

595              It would appear that we are now moving into Phase II, unless counsel has any questions at this point.  I'm sorry.

596              MR. HOWARD:  Perhaps just a couple.

597              THE CHAIRPERSON:  Sure.  Go ahead, counsel.

598              MR. HOWARD:  Excuse me for a second while I check my notes.

‑‑‑ Pause

599              MR. HOWARD:  When we say students, are we talking about students of the Winnipeg Training Centre or are we talking of students from Robertson College?

600              And by that, I mean can students from Robertson College who are not associated with the Winnipeg Training Centre ‑‑ or Winnipeg Broadcasting Training Centre; sorry ‑‑ be eligible for membership on the board of directors?

601              MR. CAPOZZOLO:  Oh, absolutely.  The Winnipeg Broadcast Training Centre exists in name only, if you will.  The organization that is the educational component of this entity is Robertson College, and all of Robertson College takes ‑‑ the lab portion of the curriculum takes place at what we call the Winnipeg Broadcast Training Centre, which is a different entity than Robertson College.

602              Does that make sense?

603              MR. HOWARD:  The on‑air personalities, I get the impression that some are permanent; namely yourself.

604              MR. CAPOZZOLO:  Right.

605              MR. HOWARD:  You are the major news reader.  And obviously when this thing gets up and running the students are not going to be permanent.  They will be there for a period of time and then I assume they will move on.

606              What percentage of on‑air personalities will be paid personalities, or paid persons, if I can put it that way, employees, and what percentage will be students when this thing is ‑‑ let's say you have your 12‑to‑24 students enrolled in the training college?

607              MR. CAPOZZOLO:  For the most part, the entire Harmony Broadcasting, the radio station, that is Flava 107.9, is a marketing tool for the school.  It was designed to garner the attention of those people who might consider a career in broadcasting.

608              Therefore, it is designed to be appealing to those people so that they might want to take a course at Robertson College, which also partly happens at the radio station.

609              Does that make sense?

610              MR. HOWARD:  It makes sense, but I am trying to get at how many people would be sort of permanent on‑air.

611              MR. CAPOZZOLO:  Well, the on‑air people for the most part are instructors.

612              MR. HOWARD:  Just give me a ballpark figure.

613              What I am interested in trying to figure out is you are running sort of a fine line here.  I think what you are telling us is you have to have a commercial sound because that is what you are trying to instill in the students.

614              The students obviously are not going to come in with a sufficient amount of experience to be able to give you a commercial sound.

615              MR. CAPOZZOLO:  Right.

616              MR. HOWARD:  So you have to have a body of people that are going to be sort of professionals who are going to give that station the sound, and then you are going to, I would think, orbit around that the student on‑air ‑‑

617              MR. CAPOZZOLO:  Correct.

618              MR. HOWARD:  I am trying to get some idea of the balance between the two.

619              MR. CAPOZZOLO:  I can't give you an answer to that right now, outside of the fact that I am just about all things there.

620              MR. HOWARD:  Is there anybody else who is fulltime on‑air?

621              MR. CAPOZZOLO:  Fulltime on‑air exclusively?

622              MR. HOWARD:  Not exclusively but as a fulltime person ‑‑ well, they are all, I guess, right now.  But we are talking about when you get up and running, you envisage what core group?  How much will they do and how much will the students do?

623              MR. CAPOZZOLO:  The students?  I wouldn't know how to measure that.  I could say 20 percent, I could say 40 percent.  What counts as a percentage point?  Does editing music count as a percentage point?  Music has a lot of profanity involved in it and it takes hours of work.

624              MR. HOWARD:  No.  I was talking about on‑air.

625              MR. CAPOZZOLO:  But the on‑air?  There will be students doing on‑air but I don't want to run into the same problem that Red River College seems to be running into, and that is having people show up to do their shifts.  When you have volunteer people, it is very hard to make sure they adhere to the rules because they stand nothing to lose.

626              Therefore, those students who become proficient enough will be invited to participate in the actual on‑air execution of the format.

627              MR. HOWARD:  Going with that problem for a second ‑‑ I don't want to worry this thing to death because I think I've got my answers.

628              If a student doesn't show up for a shift, surely there are marks taken off the student in his or her course and that student will start failing.  Sort of a primary responsibility of radio is to have no dead air and somebody there.

629              MR. CAPOZZOLO:  Absolutely.  But I wouldn't ‑‑ someone would have to prove themselves before they get on the air.

630              MR. HOWARD:  I'm sorry to get back to this, but with regard to the relationship between the three entities, I take it from what you have told us so far is the student that signs up with Robertson becomes a student of Robertson.

631              MR. CAPOZZOLO:  Correct.

632              MR. HOWARD:  Robertson then has a contract with the training centre.

633              MR. CAPOZZOLO:  Right.

634              MR. HOWARD:  And the training centre's function is to sub some of the instruction on behalf of Robertson.

635              Is that correct?

636              MR. CAPOZZOLO:  All of the instruction.

637              MR. HOWARD:  Well, I thought Robertson was going to do some in‑classroom work or something.

638              MR. CAPOZZOLO:  The theory happens at Robertson College.

639              MR. HOWARD:  Okay.

640              MR. CAPOZZOLO:  The lab work happens at the training centre.

641              MR. HOWARD:  So every dollar that the student pays to Robertson is then flowed through to the training centre.  Is that the way it goes?

642              MR. CAPOZZOLO:  Not every dollar; a portion of every dollar.

643              MR. HOWARD:  What does Robertson retain?  The administrative overhead?  What do they retain?

644              MR. CAPOZZOLO:  Well, there are instructors to be paid.  There is classroom time to be addressed.

645              MR. HOWARD:  So Robertson does have some instructors and does have some classroom time.  Is that correct?

646              MR. CAPOZZOLO:  Yes, absolutely.

647              MR. HOWARD:  So then a portion of the funds given to Robertson flows through to the training centre.

648              MR. CAPOZZOLO:  Yes.

649              MR. HOWARD:  What percentage would that be?

650              MR. CAPOZZOLO:  I believe once the instructors are paid, it is 35 percent.

651              MR. HOWARD:  So you get 35 percent of the total.

652              MR. CAPOZZOLO:  Right.

653              MR. HOWARD:  Is there a relationship between the training centre and Harmony?

654              Harmony has to get some money to carry on if it is going to have on‑air people, et cetera.

655              How does the money flow through to Harmony?

656              MR. CAPOZZOLO:  Harmony helps pay the expenses associated with running the station.

657              MR. HOWARD:  Okay.  What percentage of the 35 flows through to Harmony?

658              MR. CAPOZZOLO:  Hopefully very little.

659              MR. HOWARD:  Let's go through the expenses.

660              MR. CAPOZZOLO:  I get to keep that money.  I get to keep the money that goes to the training centre, unless it is required for operating expenses.

661              MR. HOWARD:  Then you pay out of your own pocket Harmony.

662              MR. CAPOZZOLO:  Right.

663              MR. HOWARD:  And you augment that slightly with advertising, if you can.

664              MR. CAPOZZOLO:  Exactly.

665              MR. HOWARD:  Who owns the equipment running the radio station?  Is that the training centre?

666              MR. CAPOZZOLO:  The training centre owns the equipment associated with the labs.

667              MR. HOWARD:  What about the logger tapes or logging machines, computers for the station, the transmitter, the studio area, who owns that stuff?

668              MR. CAPOZZOLO:  Harmony Broadcasting.

669              MR. HOWARD:  Harmony does.

670              MR. CAPOZZOLO:  Yes.

671              MR. HOWARD:  I would like to turn to something, perhaps a little more formal, with regard to the mandatory orders.

672              We have gone through the situation that caused breaches and I think we have gone through pretty much your plans to ensure those breaches don't occur.

673              MR. CAPOZZOLO:  Yes.

674              MR. HOWARD:  What I would like to put to you now is an idea, in sort of general terms, of what those orders will contain and be like.

675              I think I will put through each of them to you and at the end ‑‑ because I think you will have the same comment, if any comment ‑‑ I will ask you if there are any reasons why if the Commission thinks it is appropriate, the order shouldn't be in that form.

676              MR. CAPOZZOLO:  Okay.

677              MR. HOWARD:  Have I sort of, in a complicated way, made myself understandable?

678              MR. CAPOZZOLO:  Sort of, yes.

679              MR. HOWARD:  Thank you.

680              So the first one is with regard to the breach of the Regulations.  Here we have 2.2(8).

681              That is the 35 percent of cat. 2.

682              MR. CAPOZZOLO:  Right.

683              MR. HOWARD:  So the order will read:

"The Commission hereby orders that the licensee adhere to section 2.2(8) of the Radio Regulations."

684              The next one will be sections 8 and 9 of the Radio Regulations, and the order would read something along the lines of:

"The licensee will adhere to sections 8 and 9 of the Radio Regulations."

685              With regard to the COLs, there would be three of those.

686              The first would be that the licensee adhere to condition of licence, and we would have:

687              (1) broadcast level of 5 percent of category 3 music; repeat that condition of licence.

688              And then for the second we would have the 4 percent news; repeat the current condition of licence.

689              And for the last one we would have broadcast weekly two hours of formal educational broadcasting and repeat the condition of licence that is there.

690              Any comment on the appropriateness of that?

691              MR. CAPOZZOLO:  I really don't think it is necessary.  I at no time attempted to or desired or wished to circumvent any rules.  In fact, I designed the format of the radio station to over‑deliver on those demands.

692              With regard to Canadian music, I have people across the country coming to Winnipeg hoping to get their music played, having heard that there is a station that will do that; that is perceived across the country as one of the few stations that actually plays this format exclusively.

693              That is why I said to you, Madam Chair, that I do believe that this is in this marketplace an Alternative radio station.

694              There is very little in this country that will expose artists in this genre.  The majority of our Canadian category is made up of local artists.  We have artists calling us up asking us to work out promotional devices where they can come to Winnipeg, bring their music and get it added to our on‑air line of Canadian talent.

695              I really have no qualms with Cancon at all.  If anything, I am a promoter of Canadian talent and playing Canadian music.  Playing local music is something that is seriously lacking across the country.

696              With regard to the spoken word, we over‑delivered on the spoken word in terms of the ‑‑ you know, if there was ever an issue with regard to whether we were trying to be a commercial radio station, I think everybody in this room understands that that is entirely based on your hit/non‑hit quotient.

697              We play 30 percent.  That is what we are allowed to play.  We are down around 22‑23 percent non‑hit.

698              Therefore, with regard to the news, candidly I didn't understand that certain things didn't qualify as news.  I didn't know that weather didn't qualify as news.

699              Therefore, once I understood that that was the case, we over‑deliver on the amount of news that we are required to deliver each week.

700              MR. HOWARD:  Thank you.

701              Thank you, Madam Chairman.

702              THE CHAIRPERSON:  Thank you.

703              I propose to take another 15‑minute break.  I have 25 to 12:00.  At ten to 12:00 we will reconvene with Mr. Boroditsky.

704              There is one other technical issue, and that is the agreement between Robertson and the numbered company, if I am correct, Mr. Capozzolo, that you have said can be filed on the public file.

705              MR. CAPOZZOLO:  If you wish, yes.

706              THE CHAIRPERSON:  I am wondering, Mr. Secretary, if we could have it arranged that that will be put on the public file say some time after the break?

707              THE SECRETARY:  I don't know that we have a copy of it at the hotel here.  That is the problem.

708              We could probably arrange to have somebody run over to the office.

709              THE CHAIRPERSON:  That is what I was thinking.  I was hoping by the time of reply to interventions that we could deal with that issue, if we could perhaps have it on the file by then.

710              Is that possible?

711              THE SECRETARY:  Yes, we will endeavour to do that.

712              THE CHAIRPERSON:  Thank you.

713              We will adjourn until ten to 12:00.

714              MR. CAPOZZOLO:  Thank you.

‑‑‑ Upon recessing at 1137 / Suspension à 1137

‑‑‑ Upon resuming at 1204 / Reprise à 1204

715              THE CHAIRPERSON:  Order, please.

716              Mr. Secretary.

717              THE SECRETARY:  Thank you, Madam Chair.

718              Mr. Boroditsky has sought to file certain information which is not on the public record at this time.  Copies of this material have been provided to Mr. Capozzolo and his counsel.

719              Specifically the five documents are as follows:

720              The first one's title is:  "For CRTC Public Hearing Re Harmony Flava 107.9".

721              The next one, the top line says:  "To the CRTC".

722              The third document, the top line says:  "Outside of the Public Complaint File".

723              The fourth document, the top line says:  "Morning Show Clock".

724              The fifth document starts with a cover sheet from Fillmore and Riley.

725              I now invite Mr. Capozzolo and Mr. Tweed to apprise us as to their position on this new information.

726              THE CHAIRPERSON:  If I could just interject, Mr. Secretary, the one document entitled "Outside of the Public Complaint File", being a letter to myself, dated October 10, 2004, is on the public file.

727              It is document No. 400306.

728              So that is already on the public record.

729              Go ahead, Mr. Tweed.

730              MR. TWEED:  Yes, we are aware that that one is on the public record.

731              None of these other four are on the public record and we would object to their being admitted into the public record.  Admitting them at this stage is inconsistent with the rules of this Commission.  It is inconsistent with procedural fairness as it doesn't give the licensee an opportunity and the time to address what is alleged in the documents and then provide a proper response to the Commission.

732              Third, the Notice of Public Hearing provides for times within which things must be filed, provided for times within which we were entitled to respond, and indicated who was going to be the intervenor.

733              At the beginning of the hearing the only intervenor that was on the record was the one gentleman who is I believe here.  I don't have any idea who the other two gentlemen are.

734              As a result, we object to any other intervention and to the admission of any other documents that are not already part of the public record.

735              Thank you for your consideration.

736              THE CHAIRPERSON:  Mr. Boroditsky, do you have any reply comment to the argument of Mr. Tweed?

737              MR. BORODITSKY:  Yes.  I just want to clarify why this has been what seems to be an irregular procedure.

738              In my intervention, actually prior to my filing the formal intervention, my response to Notice of Public Hearing, I had contacted the CRTC with regard to my desire to provide information on a confidential basis, as I am sure the Chairman is aware.  This became the subject of a lengthy e‑mail exchange between myself and officials in Ottawa, as well as a phone conversation with Mr. Howard at one point.

739              Because of not being able to get hold of Mr. Howard prior to the deadline, I was put in a position where I didn't know whether I could file it or not.  I was concerned about conducting those filings out of order in terms of being granted confidentiality.  It was sort of like closing the barn door after things were out.

740              This didn't transpire in a way that was trying to circumvent the rules.  I was trying to work within the rules, but I didn't get a ruling on the confidentiality aspect until last week.

741              Once I was not granted confidentiality, I then referred back to the Notice of Public Hearing that you required ten copies of graphs, documents, everything else, and I presumed that this kind of material fell within that parameter and made the required ten copies for the Commission.

742              I don't want anybody to suggest that I am trying to back‑door or do anything inappropriate.  I felt I was observing what I believed was how you people proceeded with these things.

743              In a couple of cases the material existed for quite some time, but the CRTC never contacted myself with regard to any documentation or information I may have been able to provide in the course of the prior investigation that led to this hearing.

744              You know what your rules are and what your rules aren't and what you can and can't accept.  I think if I went and referred to some of this material in the course of my speech, you could very well turn around and, as you have for the licensee, ask me if I could provide an undertaking to provide such documentation.

745              I understand why there is an objection and I respect it, but the attempt to bring this material forward was honest.  This material is germane as it is statements from people who, as you heard in the prior testimony, are being blamed in some cases for the lack of compliance.

746              I had no contact with these individuals until they read my material.  It was posted on the Internet on the CRTC Website.  They contacted me, expressed their concerns, reviewed some of the material I had compiled and felt that there was a bigger story to tell.  They were concerned that blame was going to be shifted rather than left where it belonged.

747              So that is why they asked to come forward.  They asked me to ask for confidentiality because there is a fear of reprisal, and this has been expressed.

748              I did it not only on my own behalf but on their behalf as well.  In the absence of rules in the federal system or in the legislation that provide for whistle‑blower protection, they have bravely chosen to appear with me this morning.

749              THE CHAIRPERSON:  Mr. Boroditsky, you are aware that when you provide a document ‑‑ and we have sent you how to find Circular 429 ‑‑ you are to say "these are confidential and I wish these portions to be confidential and please make a ruling".

750              MR. BORODITSKY:  I don't believe that any reference to 429 was sent to me until I was sent the ‑‑ I'm not even sure it was in the ruling against my request for confidentiality.  I think it might have been sent to me by Mr. Ramsay in a subsequent exchange.

751              I was not aware of that circular until very late in the day.  As I said, I'm not even sure that I was made aware of it before the ruling was made.

752              It was only in the last week and a half.

753              If I had known about that circular, I would have been more than happy to click on the link and read up on it and ask questions.

754              THE CHAIRPERSON:  There was the refusal for the request for confidentiality because nothing was submitted to us and we couldn't figure out what could be confidential.

755              MR. BORODITSKY:  I am sorry to interrupt, but I want to make the point that I was not told at any point by the bureaucrats in Ottawa that I had to submit anything to be evaluated.

756              The e‑mail trail was clear.  I am disappointed that a rule was pulled out of left field to justify the decision like that.  Again, if I had been told "can we see what you are talking about" ‑‑ you can see from the nature of the material.  It's not like a nuclear bomb.  I would have submitted it, gladly.  I would have taken it down to the local office or had it faxed or whatever.

757              Again, I respect your rules.  But if I am not told what your rules are, it's a real stretch to expect members of the public to ‑‑ I think I said one e‑mail.  I don't have ESP.  How am I supposed to know that I am supposed to submit this stuff for you to evaluate?  I would have.

758              I have had a conversation with you.  I think you are fairly confident that if you said "can we look at this first and we will tell you what we think", I would have sent it to you in Regina, or whatever.

759              THE CHAIRPERSON:  Mr. Boroditsky, I want to get to where we are right now.

760              You have provided us with five documents.  Four documents are being objected to by Harmony.

761              Do I understand that you are not providing them in confidence to us?

762              MR. BORODITSKY:  No.  If I made ten copies, I am putting it out in public.  I didn't want to be forced to do that, but there is evidently no contemplation of protecting whistle‑blowers within the Regulations of the CRTC.  So this has forced our hand.

763              THE CHAIRPERSON:  So there is no claim for confidentiality and ‑‑

764              MR. BORODITSKY:  On this material?  No.

765              THE CHAIRPERSON:  All right.

766              The second issue is you wish to have the documents admitted because you didn't know our rules.  Is that it?

767              MR. BORODITSKY:  I was not told your rules and I did not know your rules.

768              Certainly with regard to the circular, it is not hard to pull up the e‑mails from Ottawa.  That reference to the circular came from Mr. Ramsay in justifying the decision when I started to question it actually.  I am pretty sure that is how it transpired.

769              THE CHAIRPERSON:  The problem is that we have two further individuals who are here sitting with you at the table who have not intervened within the timeframe.

770              The question is:  How would you feel if the converse happened to you?  Would you think that was fair?

771              MR. BORODITSKY:  Oh, they are not going to say anything.  I will make my address, but I think this way, if you have any questions about what was going on, you can ask them.  They were there.

772              They weren't questioned in the course of the investigation for two years, and their reputations are on the line.  They have stepped forward very bravely, as I said.

773              THE CHAIRPERSON:  Again I ask you how you would feel if you were in Mr. Capozzolo's shoes if these documents come out of left field at him within a hearing.

774              MR. BORODITSKY:  Well, you see, it depends on how a hearing is structured.  If a hearing is structured to get to the truth and hear from witnesses, then you expect it.  In this case, since he has said that certain individuals were fired and weren't complying, they are right here.  They can tell you whether any of that is true or not.

775              If your hearing structure doesn't permit that, then it may not serve the purposes of getting to the truth overall.  I respect that you have rules and procedures, and that is all way above our heads.  We just want to work in radio here.

776              THE CHAIRPERSON:  Are you aware of the legal concept of vicarious liability where the boss is responsible for everything that the employees do?

777              MR. BORODITSKY:  Yes, I am aware of that.  But again, people's reputations to some extent may be not at stake but maybe have been raised as a question.  They clearly anticipated that this might happen, and they want to have an opportunity in a public forum, if they are questioned in public, to stand up for themselves.

778              I understand what you are saying, and I am not suggesting that you are not wise people who can interpret the information, the evidence.

779              You know, if you want to work in radio and it is on the public record, regardless of the way the boss is responsible, if you work in radio and you are fingered as the guy who didn't do the Canadian content right, or didn't provide the news right, or whatever, go try to find a job in radio.

780              In a law firm, maybe the senior partner is responsible, but you know what?  If you are fingered as the guy who screwed up the case, you will be working in Fort McMurray instead of working in Ottawa.

781              THE CHAIRPERSON:  Fort McMurray isn't a bad place these days.

782              MR. BORODITSKY:  It may not be for lawyers.  I'm speaking in terms of radio actually, ma'am, but I understand your point.

783              THE CHAIRPERSON:  Counsel, do you have anything further to say?

784              MR. HOWARD:  No; thank you.

785              THE CHAIRPERSON:  Clearly we need to make a ruling on whether those four documents, as elucidated by the Secretary, are admissible.

786              I wish everybody in the room to know that we have not seen them.  The Panel has not read them.  We have to make our decision based on the arguments that we have heard.

787              I'm sorry for this, but can you give us ten minutes, until a quarter to 1:00.

788              MR. BORODITSKY:  Could I ask you a question, ma'am?

789              I have remarks that will take up about nine minutes of the ten minutes allotted.

790              I am going to hold the question.  I will let you make your decision, because it could prove to be moot.  You might as well proceed that way.

791              So I withdraw the question.  I won't ask.

792              THE CHAIRPERSON:  Give us ten minutes.  Thank you.

‑‑‑ Upon recessing at 1235 / Suspension à 1235

‑‑‑ Upon resuming at 1250 / Reprise à 1250

793              THE CHAIRPERSON:  Thank you.  We are back in order again.

794              I have consulted with the Panel and legal counsel ‑‑ please sit down; I'm sorry.  I will wait for you.

795              This hearing is a very serious hearing.  The issue is compliance or non‑compliance with the Regulations and the conditions of licence.  The issue is compliance by Harmony Broadcasting and should a mandatory order be issued against Harmony Broadcasting.

796              Given the seriousness, strict natural justice and rules must be applied.  All procedural orders and public notices giving deadlines must also be followed.  Harmony Broadcasting has a right to know the case against it and be able to reply in a considered manner.

797              The Panel therefore accepts Harmony's objection and all documents will be returned to Mr. Boroditsky.

798              We ask you now, Mr. Boroditsky, to state your intervention and to contain yourself to matters on the public record.

INTERVENTION

799              MR. BORODITSKY:  At the outset, I want to explain why the operation of this campus instructional radio licence became the subject of a complaint from me over two years ago.  I want to make clear that it was only under the requirements of the federal Labour Program that I conducted a search of the records.

800              I was told by department officials to determine which individuals be held liable as directors of Harmony for paying me when a payment order was issued by the federal government.  The general manager illegally withheld my pay cheque when I refused his demand to alter our agreement.  He insisted that I had to work for less than the legal minimum wage when a new format was being imposed, starting in September 2004.

801              Had I been paid the money I had earned when it was due, I would not have ever bothered to look into the corporate structure of Harmony Broadcasting or the assurances the CRTC was given about the operation and the involvement of student broadcasters.

802              What I found on the files was that promises and claims had been made to the CRTC about classes being offered and students already working on programming.  Those conditions were the very basis of the licence.  Those promises were patently false, based on my own experience at the station and the statements and actions of the general manager.

803              I outlined much of what was transpiring in an e‑mail to Commissioner Barbara Cram two years ago, which I guess has now been submitted.

804              When the licence was renewed there was no involvement from the sponsoring educational institution, the Winnipeg Technical College, and the broadcast courses I was originally told I would be teaching in the fall of 2004 were not even being contemplated for another six months.

805              That was the first fraud.

806              People had been saying that this has been an accredited school for two years.  You were being deceived.

807              The first class was finally scheduled for October, although now this morning you were told it will be held in January.  Both the general manager and the Winnipeg Free Press and Robertson College, when I phoned them, confirmed that it is when the very first class is being held.  No students were enrolled through an accredited institution or have been at the station since September of 2004.

808              When I looked at the provincial corporate file, I found that Harmony supplied a false list of people with the CRTC as being responsible for the licence.  Then the treasurer listed on the CRTC forms told me, and his boss at the Winnipeg Technical College confirmed, that he, Doug Kurtz, was never on the board, had nothing to do with my pay cheque and was not the treasurer.

809              There was no treasurer and no oversight from Winnipeg Technical College.  This was against your rules, and this was the way Harmony operated when you were deceived into renewing the licence.

810              According to the Province of Manitoba, only two directors were on the board when the licence was renewed.  Harmony was in breach of minimum governance requirements.  One of those directors was the general manager.

811              The CRTC was told a functioning representative board which met the Regulations was in place and responsible for the station.  There was not.

812              The station was not being run by a non‑profit board representative of the community, faculty, volunteers and student body.  That was the second fraud.

813              There was no board, no meetings, no student body and no student director as required.

814              A statement which is not admitted contains comments from Devol Dryden, who is to my left.  He has indicated to me that he was never on the board, was never invited to a board meeting, never appeared at a board meeting and was never a student.

815              He indicated there have never been any courses or classroom setting and that everyone at the station was getting paid or getting their pay banked to be paid at a later date.

816              He also was responsible for matters involving turntablism and Canadian content.

817              The total absence of students and classes was the third fraud.  By every measure, Harmony was a sole proprietorship, confirmed by the provincial Companies Office documents.

818              Since the day the licence was renewed, the general manager was in law the president of the non‑profit that employed him, retained on an annual contract, and the provincial documents he himself submitted to the CRTC say he is not only president, but his contract was approved by a board he hand picked.

819              While the renewal process was under way, funds derived from suspicious agreements affecting the format of the station and the content of the programming, approved by no functioning board, flowed into the station while employees were denied their earned pay.

820              Flava 107.9 was designed to be run after the renewal was approved strictly as a commercial venture.  It relied almost entirely on advertising revenue, contrary to CRTC rules.  The ad revenue was to be derived from one single source, Robert Edward Blake, who was later arrested and charged as being part of an Ephedrine smuggling ring.

821              In my presence at the station, Blake was frequently accompanied by people who were later arrested and identified as members of the Banditos motorcycle gang.  One of those associates took part in a meeting at Blake's nightclub with Franc Capozzolo and Ron Taylor about Blake's interest in the station.  That person was also arrested with Blake in the drug sweep.  Now he is in jail in Ontario awaiting trial for the murder of eight other members of the Banditos Outlaw Motorcycle Club.

822              Blake was told he could buy every single minute of advertising.  After the renewal was granted, he was given control of the format and told a reporter from the University of Manitoba he was the new owner of the station.

823              He ordered Hip Hop music as a new format, and he had no interest in the school requirements or in the spoken word or educational programming that your rules require.  Neither did the general manager once he believed the money was going to be flowing to pay his own wages.

824              A clock outline that was provided to me as a proposal for the morning show that I was doing, that was to be continued, clearly did not meet even the barest requirements for spoken word, as there was music, promotions and other matter scattered generously throughout that four‑hour period.

825              The operation of Flava was 100 percent commercial with not a single student in sight.

826              I expressed concern to the general manager about the various associates frequenting the station with the advertiser, who had been given an office on the premises.  As events unfolded, I understand why my warnings were ignored and why I was ordered by the general manager to stop doing public affairs segments, focusing on crystal meth addiction and the lack of provincial treatment programs.

827              After I was ousted, I was shocked to hear Blake was almost immediately arrested in Operation Diversion on drugs and weapons charges still before the courts.

828              As I indicated, his associate was also charged and is now awaiting trial on the murder of eight men in Ontario.

829              This alone should explain why the CRTC needs to review and change their policy about providing confidentiality to people who come forward and why staff must be directed to scrutinize licensees and applicants more than the bare clerical minimum of just accepting paperwork or believing what they are told.

830              When the advertiser was arrested and the general manager disavowed any involvement with him, the mystery of there already being two boards of directors ‑‑ one listed with the CRTC and the other with the province ‑‑ became even stranger.

831              Neither board was legitimate.  One was not registered with the province and the other didn't have the required number of directors.  The one that was not registered with the province meaning the one that the CRTC was given.

832              As you can see from documents that are already on the public file with the CRTC ‑‑ documents that were given on CRTC forms and others from the provincial Companies Office ‑‑ Harmony filed backdated documents inventing a director to satisfy the minimum requirements of the province that they were in violation of when your federal agency renewed the broadcast licence.

833              The CRTC is well aware of public reports from September 2004 about a new owner, a new format and an intention to target the Hot 103 audience share.

834              Although there may be claims no deal was ever signed, it is clear that some deal took place between Franc Capozzolo and the advertiser, and the terms of that deal were being implemented.

835              When the licence got renewed, we were immediately told the format was changed to Hip Hop music, with a distinct commercial business plan.  The advertiser was given an office and control over the entire musical content and every ad spot, and over hirings, firings and the budget, including wages.

836              The general manager was slated to earn $65,000.  No board approved any aspect of this arrangement, which totalled well over $100,000.

837              The licence was under the control of a single entity, the general manager, who effectively handed the station to another single entity, an advertiser who, I grant you, may even have been told that the practice was legitimate.

838              What was not legitimate about Harmony and Flava is outlined in the experience of Devol Dryden, who is willing to step forward and indicate that there were no students, no school, no classes, no board of directors, no pay, unusual financial practices, including the issuing of fake T‑4s, and has knowledge of why the loggers were not filed as required and why the music was not in compliance.

839              Another person who stepped forward in the complaint to the CRTC is Chris Knight.  He is the fellow second over on my left.

840              He was also claimed by Harmony to be a student in the responses to my original complaint in September of 2004.

841              Mr. Knight joins Mr. Dryden in denying ever being a student enrolled in any classes or paying any tuition or that any classes or students ever existed.

842              Mr. Knight also says he was told to lie to authorities if asked about it.

843              He also has information about the music operations, financial irregularities, the advertising revenue, the refusal to pay employees and the lack of any board of directors to appeal to, and the lack of any student body.

844              Both these individuals asked me to request confidentiality to address the CRTC so they could bring their evidence and concerns forward without fear of reprisal.  Both of them indicate in statements they have provided to me that they continue to fear repercussions because they have been forced to publicly step forward.

845              Both say that the evidence that I uncovered going back over two years is supported by their experience and knowledge from listening to and working for the general manager and how he said the CRTC could be fooled by stalling and excuses and blaming others.

846              Both asked me how the CRTC allowed this to happen and why this was not investigated and stopped.  With no legitimate board of directors to turn to, employees were made to pay the price for the deception being played under government licence.

847              Winnipeg can certainly benefit from a facility that could teach students about new music forms like Hip Hop and that could teach true investigative journalism.  The general manager proposed this, but for obvious reasons had no intention of delivering.

848              An entire segment of our community has had their trust and hopes betrayed, and therefore in no way can the CRTC continue to allow the people associated with Harmony Broadcasting to stay on the air or be in care and control of the licence when the entire station and format were built on lies and when the renewal was given to a board that was not legal.

849              That concludes my remarks.

THE CHAIRPERSON:  I have just one question.

850              You are aware of the mandate of campus stations; that they have to be truly Alternative.  And you know the Winnipeg market.

851              We have a duplication of the playlist of 20 to 25 percent with the Standard Radio ‑‑ I forget the name of it; CJ...

852              MR. BORODITSKY:  It's Hot 103.

853              THE CHAIRPERSON:  Yes; CKMM‑FM.

854              Do you consider that Alternative?

855              MR. BORODITSKY:  I do not profess to be an expert in the variety of music formats, but from my own experience I can explain to you what effect this has had in the marketplace.

856              It is not Alternative because what it does is besides duplicating a substantial percentage of the playlist, what it does is it creates a market demand where all of a sudden you have a situation where a campus station has been selling live remotes like a commercial station, has been sponsoring events like a commercial station and it has driven audience and market share away from Hot 103.

857              In other words, if kids are going to ‑‑ and let's face it, we are dealing basically with a younger generation in terms of this format.  This isn't CJOB we are talking about.

858              You have kids and they want to hear certain kinds of music.  Right?  They want to hear Dr. Shock.  They want to hear Esqway(ph).  They want to hear people that they feel they can relate to on the air in terms of the music selection, in terms of just their presence on the air.

859              They get drawn to that.  They get drawn into that.  Now when the station starts selling live remotes and Dr. Shock goes on the air, Esqway(ph) goes on the air and says we're going to be at Canad Inns, whatever ‑‑ and there is a series of bars, an entire hotel chain, that a deal was cut with.  And this is for like $1,000 or $1,500 a night?

860              Well, normally those commercial outlets would go to Hot 103 or perhaps to one of the other stations.

861              Instead, because this format was in effect like a narrowcast, and very specific, this cannibalized Hot 103, the financial aspect, as well as in terms of the listenership.

862              This isn't just a question of the BBMs and who is tuning in kind of stuff, because as far as I know, Harmony Broadcasting, none of the college stations are metered.  They all fall into that 1 percent ‑‑ or I guess there's 10 percent of the market here that is "other stations" whenever I read the ‑‑ is it still called BBMs ‑‑ when I read the ratings.  And it is not metered.

863              But you know what?  That 1 percent is going out every Friday, paying $5.00 at the door to get in, buying the T‑shirts, buying the CDs, wanting to come see the artists when they are bring brought in.  As the general manager described, they have been approached by others to bring in.

864              Then go get a commercial licence.  That is not what campus stations do.

865              I have talked with Rob Schmidt at the University of Manitoba.  I talked with someone at the University of Winnipeg.  I have been unable to find any other station in the country that conducts this kind of financial plan to underwrite the station.

866              Now it could be that somebody has come up with a great idea here, but without being a lawyer or an expert on the Regulations like you are, something tells me there is a reason why no other station in the country does this.

867              My instinct is it is not a legitimate practice.

868              This has been a commercialized operation from day one, to go after the hottest market.

869              I lived in Los Angeles for a year and a half.  I lived in Vancouver around that time so I have an idea what is going on out there.  It takes a while to get to Winnipeg.  The midwest gets things kind of last.

870              In this case, although the idea ‑‑ you know, the commercial idea is great.  But you turned down Paul MacRae applying for a commercial licence, and that is how this licence ended up in the hands of Harmony.

871              There is no way of looking at it any other way.  This was commercially driven from the beginning.

872              It is hard for bureaucrats and public officials and appointees.  You are not exactly hanging out in clubs.  You don't necessarily understand how the economics of that part of the industry work.

873              Again, I am fortunate.  By living on the west coast I learned a few things I wouldn't have learned in Winnipeg.  And working in the film industry and such.

874              This was purely commercial, with no legal board of directors when you handed that licence renewal over, and no indication given to you that the format was going to be changed.

875              This is a dangerous precedent you would set by accepting these mea culpas, these apologies and now we are in compliance.  In my complaint, the response to my complaint, that was in my opinion continually being buried in the process of the bureaucracy of the CRTC, the general manager would write:  Oh, well, we have students and they are providing programming.

876              And no investigation was done to verify this.

877              I don't understand that, but while that was going on, vast amounts of revenue were being generated through these live remotes and through these sponsorship packages.  This isn't selling an ad spot for five bucks each or ten bucks each like they do at the U of M.  It is very sophisticated because it is driven by the music.

878              When you start involving the music business with students from all economic classes, all racial classes, all walks of life, the music business can be a very cut‑throat industry and a very dangerous industry.

879              I think there is ample indication that this campus operation tread far too deeply on the other side of the equation with no accountability and really as a deception on the CRTC.

880              Great idea.  Go get a commercial licence.

881              If I had thought that I could go get a licence, sell advertising and not have to turn out, graduate one student in two years, I dare say that if I had thought it was legal, if I hadn't of done it, somebody else would have come up with this idea.

882              It is troubling because there is an entire community out there, represented by Mr. Dryden and Mr. Knight, who had a following and they feel betrayed.  And they should feel betrayed because their music is being used, their culture.  It is a cultural movement.  This isn't the same as saying well, we're going to play Country so we will play some Hank Williams.  Or we are going to play 60s and 70s Rock.

883              This is a very different kind of environment that I am not certain that the CRTC is well informed about or that the staff has necessarily studied.  And I'm not saying that as a criticism.

884              We are all middle‑aged and we come from a different culture, and the times are changing.  The CRTC has to change with those times and do a better job of understanding what is going on out there or you are going to get, as we said in L.A., put into the trick bag.

885              This is clearly, in my opinion, what has gone on.

886              So to answer your question the long way, do I think it is Alternative programming?  To some extent that it might play some Canadian artists, yes, it is.  And people should be complimented for that.

887              But when it is 20‑25 percent, you are just trying to steal not just market share, but it is those advertisers and it is those live remotes that generate all that revenue.

888              We have heard that this is an organization, by his own admission, that is controlled by the general manager, that hand picks the board of directors, that has not said who is on the nominating committee, has not ever produced a membership list or explained how members are found, who is also the sole principal of a numbered company or the Winnipeg Broadcast Training Centre ‑‑ I am not really clear on what that was all about.

889              This boils down to a sole proprietorship with a commercial format, which again, if it is done legally, I'm all for it.  God bless them.

890              But when people's labours are used ‑‑ I was hauled into this to provide spoken word programming.  So when the renewal was taking place, the station was showing an effort to try to comply.  And I did my best, and I could probably say, as far as I know, no one complained to Mr. Krushen or anybody at the CRTC about anything that I did on the air.  Thank God.

891              I never wanted to deal with the CRTC.  When you are a broadcaster, you don't want the reputation of being in conflict with the CRTC.  I have done some broadcasting as well as some consulting work, whatever.  I don't want to jeopardize my career.  These gentlemen don't want to jeopardize their work as DJs or, you know, as scratchers or whatever in other markets, Vancouver, Toronto, the bigger markets where there may be some additional demand for their skill and their talent.

892              I was sucked into something under very false pretences.  And the minute I was told well, there won't be any classes in September, maybe October, and I phoned Winnipeg Technical College and was told oh, there's not going to be any classes until January.  Fraud.

893              The premise of why I came in was honest.  I performed honestly.  And everybody that is sitting at this table feels that their labours were used to help deceive the CRTC into thinking there were students and compliance when in fact there was a commercial operation being run by a sole proprietorship.

894              THE CHAIRPERSON:  Thank you, Mr. Boroditsky.

895              Thank you for intervening.

896              We will actually now move on to the reply period.

897              THE SECRETARY:  Thank you, Madam Chair.

898              That now completes Phase II.  We are at this point proceeding to Phase III, and I would now ask Mr. Franc Capozzolo to respond to all the interventions that were filed on these matters.

899              You have ten minutes for this purpose.

REPLY / RÉPLIQUE

900              MR. TWEED:  The response will be brief.

901              The response to the written intervention was made in writing, and that is the only response we intend to make on that.

902              The response to this one will also be brief.

903              Some of what he said is relevant to the matter that is in front of you.  Most of everything that he raised has been issued in your questions to Mr. Capozzolo during the original hearing this morning.

904              Some of the rest of the stuff, I am sure you know what hearsay evidence is and you will know what weight to put to those kinds of things and you will deal with that in your considerations.  So I am not going to address those issues at much length.

905              I just want to advise you that we have here three gentlemen, former employees that left under unhappy circumstances.

906              That concludes my representation.  Thank you.

THE CHAIRPERSON:  You don't get away so easily.

907              We now have the agreement that has been filed, the agreement between Midwestern School of Business and Technology, operating under the name of Robertson College, and 5163642 Manitoba Ltd.

908              That is your numbered company, Mr. Capozzolo?

909              Commissioner del Val has a question.

910              Do you have this agreement in front of you?

911              MR. CAPOZZOLO:  No, I don't.

912              THE CHAIRPERSON:  Mr. Secretary, could you give Mr. Capozzolo a copy of that agreement.

‑‑‑ Pause

913              COMMISSIONER del VAL:  I just want to confirm that that numbered company is in fact the Winnipeg Broadcast Training Centre.

914              MR. CAPOZZOLO:  Yes.

915              COMMISSIONER del VAL:  Mr. Howard, there is an undertaking to provide the agreement that is between Winnipeg Broadcast Training Centre and Harmony?

916              MR. HOWARD:  That is my recollection.

917              MR. CAPOZZOLO:  Yes.

918              COMMISSIONER del VAL:  All right.

919              Turning to Section 3.01 of this agreement between Midwest and the numbered company, on page 3, the last sentence says:

"Failure to come to an agreement by November 30, 2005 will make this Agreement null and void."

920              Was there an agreement that you subsequently made?

921              MR. CAPOZZOLO:  Yes, we went through quite a few versions of this document.  This document took seven to eight months to come to, partly because there was outside interference in the process.  Therefore, things slowed down.

922              This was a proviso that we put in so it would keep us at the table during the negotiations of the contract.

923              COMMISSIONER del VAL:  So is there an agreement further to this Section 3.01?

924              MR. CAPOZZOLO:  No.  I think that might have been a clerical error because we went through a few changes on the dates over the period of our negotiations.

925              For example, November 30th at one time was October‑something.  At one time it was a previous date.

926              But this contract is in place, though.  This was just a thing that didn't get taken care of.

927              COMMISSIONER del VAL:  Aside from the Section 3.01, the rest of the terms of this agreement represents the agreement currently between Midwestern, which is Robertson College, and Winnipeg Broadcast Training Centre?

928              MR. CAPOZZOLO:  Yes.  This is what I filed, yes.

929              COMMISSIONER del VAL:  All right.

930              This morning you said the agreement between the college and the numbered company.  What is the term of the agreement?

931              MR. CAPOZZOLO:  Ten years.

932              COMMISSIONER del VAL:  Ten years starting when?

933              MR. CAPOZZOLO:  Starting last year, 2005.

934              COMMISSIONER del VAL:  So it expires ‑‑ do you have the month?

935              MR. CAPOZZOLO:  I can't recall.

936              The Winnipeg training centre is a registered name, and we are operating as the registered name.  Then once we got into negotiations with Robertson College, the company was ‑‑ the timeline wasn't really foremost in my mind.  It was getting the contract signed, sealed and delivered.

937              COMMISSIONER del VAL:  There is no other document to evidence the term of this agreement lasting until 2015?

938              MR. CAPOZZOLO:  No, not this agreement.  This agreement is with the 516.

939              For marketing purposes, we call 516 right now Winnipeg Training Centre.

940              Does that make sense?

941              COMMISSIONER del VAL:  If it is not this agreement, what other agreement is there?

942              MR. CAPOZZOLO:  This is the agreement.  This is the agreement with the training centre.

943              There is one with Harmony and the training centre.

944              COMMISSIONER del VAL:  Yes.  And that one you will produce.

945              MR. CAPOZZOLO:  Yes.

946              COMMISSIONER del VAL:  But between the training centre and Robertson, the terms of this agreement, except for Section 3.01, represent the terms of the current agreement between the training centre and Robertson College.

947              MR. CAPOZZOLO:  That is correct.

948              COMMISSIONER del VAL:  That current agreement expires some time in 2015.

949              MR. CAPOZZOLO:  No.  That one expires ‑‑ I believe it is a three‑year deal with a two‑year ‑‑ we can renew after two years if we are both happy.

950              COMMISSIONER del VAL:  Mr. Capozzolo, this is a very, very critical document for your station.

951              MR. CAPOZZOLO:  Yes.

952              COMMISSIONER del VAL:  I am surprised that: (1) you don't seem to be that familiar with the terms, even the expiry date, which is a fundamental term; and (2) that such a key document doesn't seem to be ‑‑

953              MR. CAPOZZOLO:  This document took over a year to put together.  Once I put it to bed, I put it to bed.  It's signed, it's sealed.

954              I could go over it and recall the elements on here.  I do everything.  I put this contract together.  I put the curriculum together.  I do the morning show.  I deal with this stuff.  I deal with the Commission.

955              And what happens is there is a lot of detail that I can't recall; dates.  I was up all night because the on‑air system failed.

956              So right now dates and particulars are a little foggy for me.

957              COMMISSIONER del VAL:  Could you give an undertaking to give us a letter to tell us exactly the expiry date of the agreement between the broadcast centre and Robertson.

958              MR. CAPOZZOLO:  I believe it is in this document.

959              COMMISSIONER del VAL:  Where would it be?

‑‑‑ Pause

960              MR. CAPOZZOLO:  My counsel has suggested that we will provide that within ten days and maybe highlight it for you, or whatever.

961              COMMISSIONER del VAL:  Please.  I recognize paragraph 12, but with wording as in paragraph 3.01, the dates would be a moving target.

962              I would expect that if the agreement is firm now, one of the elements of making a contract is that those dates be certain.

963              If you could please provide that ‑‑

964              MR. CAPOZZOLO:  No.  Those dates were in regard to this contract being put together, not a future contract.

965              COMMISSIONER del VAL:  Thank you, Mr. Capozzolo.

966              MR. CAPOZZOLO:  Thank you.

967              THE CHAIRPERSON:  I'm sorry, Mr. Capozzolo, you have two ex‑lawyers here on the Panel and both of us are having problems with this agreement.

968              MR. CAPOZZOLO:  Okay.

969              THE CHAIRPERSON:  In 3.01 it says ‑‑ and this is a joint venture:

"Each of the Venturer's respective Share in the Project shall be determined in writing by October 31, 2005."

970              Where is that agreement?

971              MR. CAPOZZOLO:  No.  I think that might be a typo.

972              This was an off‑the‑shelf contract that we reworked along the way.

973              THE CHAIRPERSON:  Then what respective shares did you decide upon in this venture?

974              MR. CAPOZZOLO:  Shares with regard to what they would receive and what 516 would receive.

975              THE CHAIRPERSON:  So what were the shares?  With a joint venture you put things in and you get things out.

976              So what were the shares?

977              MR. CAPOZZOLO:  Okay, the shares.

978              THE CHAIRPERSON:  How many shares did you get out of a hundred and how many did they get?

979              MR. CAPOZZOLO:  Oh, no, no, no.  This is a joint venture.  We are two distinctly different organizations operating as one.

980              THE CHAIRPERSON:  All right.

981              So then I go to paragraph 6 at page 5:

"The Venturers shall cause a distribution to be made to each Venturer of its Share, or a part thereof, of the tuition fees earned from the Project on such periodic basis as is agreed by the Venturers as described in Schedule C of this Agreement."

982              MR. CAPOZZOLO:  That is based around, you know, there are timeframes where after a certain period of time if somebody wants a refund, they get a percentage of their tuition.

983              So that money will be disbursed as those time periods elapse.

984              That is what the meaning of that is.

985              THE CHAIRPERSON:  Schedule C refers to fees being split as follows:

"a.  Tuition fees (after the TCF has been paid) will be split at a percentage which will be determined in writing by October 31, 2005."

986              MR. CAPOZZOLO:  Okay, I understand.  There is another document.

987              This is the document that didn't describe the financial aspects of the agreement.  This is an agreement.  If you wish to see that ‑‑ I'm sorry, I thought that was all part of one.

988              THE CHAIRPERSON:  This is an agreement to agree, Mr. Capozzolo.

989              MR. CAPOZZOLO:  This is an agreement to agree; correct.

990              I thought that was all included in here.  I'm sorry about that.

991              THE CHAIRPERSON:  So there is a further agreement.

992              MR. CAPOZZOLO:  Yes.  There is the agreement that discusses the split and how they happen over the course of a year and that type of thing; what happens if things happen.

993              THE CHAIRPERSON:  So you agree with me that this agreement to agree was in fact meant to expire, or it was contemplated there would be a further agreement.

994              MR. CAPOZZOLO:  Not unless you have the wrong document here.

995              THE CHAIRPERSON:  You have the same document I have.

996              MR. CAPOZZOLO:  Okay.

"This Joint Venture Agreement made as of the Twenty‑Eighth day of October, 2005"

997              This is where we started.  Okay, it's coming back to me.

998              THE CHAIRPERSON:  There is a reference at paragraph 12 to the termination, and it all talks about notice, 30 days, 60 days.

999              MR. CAPOZZOLO:  Exactly.

1000             THE CHAIRPERSON:  Or selling of the assets.

1001             So there is no ten‑year term here.

1002             MR. CAPOZZOLO:  No, there is no ten‑year term.

1003             THE CHAIRPERSON:  Is that in the next document you are going to provide?

1004             MR. CAPOZZOLO:  Okay, let me make something clear.

1005             516 training centre is a for‑profit organization that I am the proprietor of.  It has put together an agreement with Robertson College, that is an accredited institution, to provide training with regard to the licence, the nature of the licence.

1006             The agreement with Harmony Broadcasting and this for‑profit organization known as 516 training centre, that is a ten‑year agreement.

1007             Then there is the agreement between this organization, 516 ‑‑

1008             THE CHAIRPERSON:  Your numbered company.

1009             MR. CAPOZZOLO:  The training centre.

1010             THE CHAIRPERSON:  And Robertson.

1011             MR. CAPOZZOLO:  And Robertson, which is I believe three years with a two‑year option.

1012             THE CHAIRPERSON:  I find it interesting, Mr. Capozzolo, that there have been discussions throughout the file asking for copies of your agreement with Robertson, and to date it is yet on this file.

1013             MR. CAPOZZOLO:  Pardon me?

1014             Okay.  Now this file, I discussed this with Mr. Krushen, and I believe that all we had to do was bring the agreement.  This is the agreement.

1015             In terms of financial discussions ‑‑

1016             THE CHAIRPERSON:  You told me there was a subsequent agreement showing the shares and also showing the term of three years.

1017             Is that not correct?

‑‑‑ Pause

1018             THE CHAIRPERSON:  Do you want some time?

1019             MR. TWEED:  To be quite candid with you, I think my client is confused about the nature of his agreements.  We have undertaken to provide you with a copy of those agreements, the complete agreement.  This is part of the agreement.  I believe there is another agreement between Robertson and 5163642 that addresses the issues that you have both raised.  And there is also another agreement with 516 and Harmony, which we have already undertaken to provide.

1020             THE CHAIRPERSON:  Which I have already asked for.

1021             MR. TWEED:  I believe when we comply with those two undertakings, your questions will be addressed.

1022             THE CHAIRPERSON:  And what if they are not?

1023             I have one final question.

1024             You have known throughout, Mr. Capozzolo, that there is an issue of you having an agreement with a post secondary education institution.

1025             MR. CAPOZZOLO:  Yes.

1026             THE CHAIRPERSON:  I find it more than passing strange that there is nobody from Robertson here today with you at the table.

1027             MR. CAPOZZOLO:  Was there a reason for them to be here today?

1028             THE CHAIRPERSON:  That is certainly an issue, isn't it, sir?

1029             MR. CAPOZZOLO:  I don't believe it is.  I have discussed it with them.  They asked if it was necessary for them to be here.  I didn't think it was.  I thought this had more to do with the licence.

1030             The agreement is in place.  The President of the institution is on the board of directors.  He asked if it was necessary for him to be here.  He is setting up schools in China and in Calgary and is quite often not in Winnipeg.  So I said well, if you have to do what you have to do, do it.

1031             THE CHAIRPERSON:  Commissioner del Val.

1032             COMMISSIONER del VAL:  I am wondering whether I can clarify the agreements again.

1033             Perhaps you could undertake to provide all of the agreements you have in place with Robertson College or any other post secondary educational institution pertaining to the licensed station.

1034             That is what we need to see.

1035             As well as the agreement with the broadcast centre.

1036             MR. CAPOZZOLO:  Yes.

1037             COMMISSIONER del VAL:  Thank you.

1038             THE CHAIRPERSON:  And you undertake to do that within ten days of the hearing?

1039             MR. CAPOZZOLO:  Yes, we do.

1040             THE CHAIRPERSON:  Thank you.

1041             Counsel?

1042             MR. HOWARD:  Thank you, Madam Chair.

1043             I have no questions.

1044             THE CHAIRPERSON:  I want to thank everybody:  Mr. Secretary, Mr. Hearing Manager, counsel, my colleagues, the stenographer, the individuals with AV, the voice people, the speaker people, and the parties for attending.

1045             Thank you very much.

1046             You will receive our decision in due course.

1047             MR. CAPOZZOLO:  Thank you, Madam Chair.

‑‑‑ Whereupon the hearing adjourned at 1330 /

    L'audience est ajournée à 1330

 

 

 

 

REPORTERS

 

 

 

 

______________________            ______________________

Tom Bruce                    Fiona Potvin