Bravo! re the film RKO 281

NATIONAL SPECIALTY SERVICES PANEL
(CBSC Decision 04/05-0584)
R. Cohen (Chair), H. Pawley (Vice-Chair, Public), E. Duffy-MacLean, M. Harris, and T. Rajan (ad hoc)

THE FACTS

The made-for-television movie RKO 281 aired on Bravo! on November 20, 2004 beginning at 2:00 pm Eastern time (1:00 pm Central time). A dramatized account of the making of the 1941 feature film Citizen Kane by Orson Welles and RKO Studios, RKO 281 traces Welles’ development of the movie and the opposition to it by newspaper publishing magnate William Randolph Hearst, who was, by all accounts, the inspiration for Citizen Kane.

The broadcast contained a number of instances of coarse language, including “fuck” and variations thereof, “cocksucker”, “asshole”, “shit” and “pussy”. The broadcast was rated 14+ and contained the following viewer advisory in audio and video format at the beginning of the film and coming out of the single commercial break:

This program contains scenes of nudity, coarse language and mature subject matter. Viewer discretion is advised.

On the date of the broadcast, a viewer living in the Central time zone wrote to the Canadian Radio-television and Telecommunications Commission (CRTC), which forwarded the correspondence to the CBSC in due course (the full text of all correspondence can be found in the Appendix). The viewer explained that he had been babysitting a neighbour’s child and was searching the dial for cartoons when he happened upon this movie and heard the term “cocksucker”. He questioned whether this was appropriate language for broadcast on a Saturday afternoon.

In response to the CBSC’s initial letter to him, the viewer wrote directly to the CBSC on November 30. He noted the clause in the Canadian Association of Broadcasters’ (CAB) Code of Ethics relating to broadcast of coarse language on television and elaborated on his concerns in the following terms:

I have no basic problem with foul language, I use it daily in appropriate company. And while I appreciate the warnings broadcasters place at the start, and on return from commercial breaks, I did think that our country had some sort of good taste when it comes to “normal daytime hours” for TV browsing by viewers of any age. I did not expect that “flipping through channels” on a Saturday afternoon would expose my young visitor to such language.

Bravo! responded to the complainant on February 17, 2005 in the following terms:

Before I address your specific concern, I would like to give you some background on how we decide what is suitable for air: We adhere to Canada’s broadcast content guidelines, and take great care in selecting our programming material. Bravo! follows the Canadian Association of Broadcasters’ (CAB) Code of Ethics, Guidelines on Sex-Role Portrayal and Guidelines on Violence in Television Programming, as well as our own programming policy. […]

We attempt to show movies in their entirety rather than make major edits which might alter a film’s integrity or the director’s intent. Over the years, we have developed a relationship with our audience that we take very seriously. We try to treat our viewers in a mature and responsible way and offer them the tools (through viewer advisories, ratings icons, etc.) to choose for themselves whether they or their children should watch a particular program. RKO 281 was prefixed with appropriate advisories as to content and language.

The words you heard in RKO 281, while perhaps not to your taste, have become part of the street lexicon. While admittedly perhaps inelegant and improper, they are accepted by most of our viewing audience when used in the proper context of the film’s dialogue. RKO 281 is an award-winning made-for-cable movie which dramatizes the events surrounding Orson Welles’ most famous film, Citizen Kane. The words are used over the opening credits to set up the film in a dramatic way and establish how the film moguls feel about Welles.

Bravo! is a specialty arts channel, available on a discretionary basis. It is not an over-the-air free television service. For an arts channel, I felt that RKO 281 was an appropriate inclusion in a day celebrating movies about the movies.

We understand that the words are not to your particular taste, but hope you can appreciate and accept the context in which they were used and the film was broadcast. It is never our intention to offend any of our viewers. We have always taken our viewer feedback very seriously as we constantly strive to improve our programming. Thank you for taking the time to comment. Please feel free to write to us directly should you have any further concerns.

The complainant responded directly to Bravo! on February 21:

Thank you for your reply.

I would remind you that Clause 10 (a) of the CAB Code of Ethics states: “(a) Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am.”

I do not see where it states that members may, at their discretion, bend or break the Code of Ethics. What is the point of this code if one can interpret it and rewrite it as one sees fit?

Your “street lexicon” explanation is a “crock-of-shit” as is the “specialty arts channel” excuse. I see the waving of the “arts” flag as some excuse for a bunch of sudo-intellectuals [sic] to make your own special rules.

My friends and family will tell you that I am very foul mouthed, above average even, but even I know that “cocksucker” is a special level of WMD used for only really special occasions.

My objection to the language used had nothing to do with “my taste”. I do not think it is reasonable that when flicking around cable TV, specialty channel or not, in the middle of the day on a weekend … that one has to be thinking to shield the eyes and ears of children who would in fact be in bed by the recommended times for coarse language as set out by the CAB code!

I was able to obtain a full copy of the movie RKO 281 from a friend. Very good movie. I am a big fan of David Suchet so I wanted to see the movie for his performance as well as to confirm what I heard. Interestingly, his use of the word “cocksucker” was only one bit of coarse language in a movie that had many, many, many more violations of 10 (a) of the CAB Code of Ethics.

He also wrote to the CBSC on February 28:

I would like to amend my complaint with the following.

1. In the response from Bravo! you will note in paragraph four [Bravo!’s Director of Programming and Acquisitions] essentially states that foul language is ok “… when used in the proper context of the film’s dialogue.”

What the heck kind of explanation/excuse is that? If that is sufficient reason then isn’t it “the” one and only excuse for anything goes by any CBSC member at any time?!?!

2. Bravo! admits to the fact the language in question was used at the time observed. Why would it take 6 months for CBSC to proceed to the next step? I caught them violating your code with regards to 10 (a). They admit to the violation. There is no “loop-hole” in your code of ethics that gives them any special rights nor does their response invoke any explanation consistent with CAB’s stated Code of Ethics. What’s to review? Therefore we should now be at the penalty phase should we not!? Write them a nasty letter, make them decide to adhere to the Code or not, and get it over with!

3. I would also like to further point out to you that I have in fact observed more than a dozen similar violations on Bravo! of Clause 10 (a) of the CAB Code of Ethics since I wrote my first e-mail. I heard the word “shit” on Bravo! on Christmas Day around noon and, if I was some sort of anal retentive nut, could give you a list of days and times for my other observations … alas I am not that kind of nut. Suffice [it] to say that a cursory observation of Bravo! during the hours of 6:00 am until 9:00 pm that one could probably find a violation on a daily basis with regards to George Carlin’s “Words you never say on television”. MY INITIAL OBSERVATION WAS NOT AN ISOLATED INCIDENT, IT IS BUSINESS AS NORMAL FOR BRAVO!. So I ask again, do they have special status or some exclusion to the Code of Ethics not publicly known? Does being an “arts channel” really let you do whatever you want?

4. Finally I would like to point out that due to technical issues that I am sure has to do with satellite mumbo-jumbo, cable voodoo, and a total disregard for anyone in the stinking prairies … many of your members, but Bravo! and the CHUM group in particular, … think that Eastern time is good enough when they “release the hounds” with regards to many of the items covered in your ethics code. While it is 9:00 pm in my beloved Toronto it’s only 8:00 pm here in the Central zone yet … again … I see no caveat in your code that says the code favours one time zone more than any other!??!?!

All I am really interested in is some sort of CONSISTENCY with regards to the rules your members have made up for themselves and your enforcement of them. Failing that … some form of INTEGRITY on the part of Bravo! to say … oops we made a mistake and yes we obviously violated the Code so we should either: a) Adhere to the Code from now on; or b) abandon the Code since it does not jive with our own self-righteous rules of “whatever we say goes”; or c) CAB and its members should agree 10 (a) is out-of-sync with the “street lexicon” and the 21st century and it is open season on any language any time of day.

THE DECISION

The National Specialty Services Panel examined the complaint under Clause 10 (Television Broadcasting) of the CAB Code of Ethics which reads in pertinent part:

Clause 10 (Scheduling), CAB Code of Ethics

Scheduling

(a) Programming which contains sexually explicit material or coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, defined as 9 pm to 6 am. Broadcasters shall refer to the Voluntary Code Regarding Violence in Television Programming for provisions relating to the scheduling of programming containing depictions of violence.

The National Specialty Services Panel Adjudicators watched a tape of the film in question and reviewed all of the correspondence. It concludes that Bravo! is in violation of the above-mentioned Code provision for broadcasting a film that contained coarse language intended for adult audiences prior to 9:00 pm.

Language “Intended for Adult Audiences”

The rule associated with the use of coarse language on television programs is quite clear. Clause 10 of the CAB Code of Ethics mandates that “coarse or offensive language intended for adult audiences shall not be telecast before the late viewing period, [i.e. the Watershed].” As to what constitutes such language, there is consistent CBSC jurisprudence, in some of which Bravo! has been centrally involved.

In Showcase Television re the movie Destiny to Order (CBSC Decision 00/01-0715, January 16, 2002), the movie aired at 2:00 pm and contained words such as “fuck”, “fucker”, “shit” and “asshole”. This Panel found that such extremely coarse language constituted “scenes intended for adult audiences,” which led to the requirement that the film be aired after the start of the Watershed. The Panel made the following comment:

here the Panel is called upon to consider a movie replete with very coarse language, including the use of words or expressions such as “fuck”, “fucker”, “I’ll blow your fucking balls off”, “asshole”, “shit”, “son of a bitch”, etc. in a pre-Watershed time period. […] [I]n Destiny to Order the Panel finds that the coarse language was “intended for adult audiences” and equally inappropriate for broadcast in a pre-Watershed context.

In WTN re the movie Wildcats (CBSC Decision 00/01-0964, January 16, 2002), the movie under consideration, which was broadcast at 4:00 pm, contained words such as “fuck”, “motherfucker”, “pussy” and “shit”. The broadcaster muted out the words “fuck” and “motherfucker” in some instances but not in others. Following the substance of its decision in the Showcase matter, this Panel made additional observations based on some of the other considerations applicable to the partially edited broadcast of Wildcats.

In such circumstances, WTN had two options: either edit all instances of these words or air the film post-Watershed in the originating time zone. On the basis of the broadcaster’s letter and the five instances in which such coarse words were muted, it appeared that the broadcaster had selected the first option. It is not clear, in the circumstances, why the broadcaster had muted out “fuck” and “motherfucker” in some instances but left them in on five other occasions. Whether a purposeful choice or an inadvertence, their inclusion in a film aired prior to the Watershed constitutes a breach of [the] Code.

The Panel also finds some discomfort with some of the other expletives in the film, such as “pussy”, “shit” and the phrase “You can’t win a pissing contest against a prick.” While the use of such expressions would present no difficulty post-Watershed, the Panel finds that such words are problematic in their unedited form at a time which was not merely pre-Watershed, but at an early enough hour that children could be expected to be watching television, as in this case of Wildcats which was broadcast from 4:00-6:00 pm on a Sunday afternoon.

Then, in Bravo! re Love on the Line (CBSC Decision 00/01-1050, May 3, 2002), this Panel encountered the periodic use of coarse language (“fuck” and its derivatives). These usages were individually, and the moreso collectively, post-Watershed material.

Similarly, in Showcase Television re The Cops (CBSC Decision 01/02-1076, February 28, 2003), this Panel dealt with a complaint about the use of the f-word and variations thereof in a police drama series, which aired at 5:00 pm and did not contain viewer advisories. The Panel noted that “the use of coarse language may well be relevant, in this case constituting an accurate representation of how urban police officers and the individuals with whom they interact would speak,” but explained that that was not the issue for the Panel. Based on previous decisions, the Panel concluded that the numerous instances of the f-word required a post-Watershed time slot and viewer advisories. In Showcase Television re the movie Frankie Starlight (CBSC Decision 02/03-0682, January 30, 2004), this Panel considered that a movie containing several instances of the word “fucking” was inappropriately scheduled at 1:00 pm and thus in breach of Clause 10 of the CAB Code of Ethics. In another decision rendered by this Panel on the same date, namely, Showcase Television re the movie Muriel’s Wedding (CBSC Decision 02/03-0882, January 30, 2004), it was decided that the use of the f-word and its derivatives in an afternoon movie breached Clause 10.

More recently, this Panel dealt with a number of programs with similar language broadcast on Bravo! at pre-Watershed times of day. In Bravo! re the movie Kitchen Party (CBSC Decision 03/04-0928, December 15, 2004), the f-word and its derivatives were used many times, as were other off-colour words such as “cocksucker”, “prick”, “bitches”, “shit” and “asshole”. In Bravo! re the movie Perfect Timing (CBSC Decision 03/04-1719, December 15, 2004), the Panel ruled that the broadcast of a sex comedy that featured numerous instances of the f-word at 2:00 pm should have aired after 9:00 pm. In Bravo! re the movie Ordinary People (CBSC Decision 03/04-1187, December 15, 2004), the 11:30 am broadcast of a movie that contained several uses of the f-word and its derivatives was found to be in violation of the scheduling clause.

The bottom line for the Panel is that its jurisprudence is clear; the broadcast in a program, movie, series episode and so on of multiple uses of terms such as “cocksucker”, “fuck”, “fucking”, “shit”, “pussy” and so on constitutes “coarse or offensive language intended for adult audiences” necessitating broadcast after the Watershed or, if the broadcaster prefers, the bleeping, editing out or muting of the offending words. And the foregoing rule applies to all conventional or specialty service broadcasters, including a specialty arts channel like Bravo!, which can be expected, indeed depended on, to deliver programming of a certain genre, quality, festival-recognized off-the-beaten-path nature. Even though it, and the other specialty services referred to in this decision, are all “available on a discretionary basis … not an over-the-air free television service,” there is no separate differentiated codified standard currently applicable in terms of the use of coarse or offensive language. Although that principle may be modified some day, currently, the failure to respect this scheduling requirement constitutes a breach of Clause 10 of the CAB Code of Ethics.

Viewer Advisories

Viewer advisories were, of course, required in the case of such a broadcast, whether before or after the Watershed. Bravo! was in full conformity with the requirements of the Code in this respect.

An Incidental Matter: The CBSC Process

The complainant has raised a point relating to timing and the CBSC’s processes. He writes, “I caught them violating your code … They admit to the violation. What’s to review? Therefore we should now be at the penalty phase should we not?” In consequence, he asks, “Why would it take 6 months for CBSC to proceed to the next step?”

A fair point. The answer is that the CBSC has a process. It involves issues that are decided by Panels of Adjudicators made up of equal numbers of public Adjudicators and industry Adjudicators. It is the Adjudicators who decide whether there has been a Code breach, not an “Aha! I’ve got you!” complainant, not even a “mea culpa” broadcaster. Panels always respect the right of broadcasters to admit that they have done something not in accordance with their own sense of best practices. Panels understand fully that broadcasters sometimes acknowledge that their future actions ought to take a different direction in order to accommodate their audiences. While broadcasters are the best judges of their audiences, they do not determine when there has been a formal breach of a code. Only the CBSC Panels have the responsibility of determining whether a particular matter has, or has not, been in breach of a codified standard. Consequently, until the CBSC actually adjudicates a file, even the “admission” of a breach by a broadcaster does not constitute a breach.

Returning then to the CBSC adjudication process, it must simply be acknowledged that it takes time. It involves, among other things, the preparation of documentation relating to the complaint and the program, the calling of a meeting and the drafting of a decision. There are also almost invariably other issues involved in every file that relate to finer jurisprudential issues than the equivalent of whether one was or was not exceeding the speed limit (which is far from the style of determination of a CBSC-adjudicated complaint). Responding to issues raised by complainants that may not be central to the decision itself (such as this issue relating to the CBSC process) may be material to the ultimate decision text. And there are frequently other matters relating to the relationship of the issue to the broadcaster. The CBSC generally opens more than 2,000 files in a year. While, of course, not all of these result in an adjudication, the processing of such large numbers, essentially in chronological order, necessarily takes time. Moreover, there is no queue-jumping because a complainant believes he is right (even where, as in this case, the Panel ultimately agrees with him).

In summary, the Panel considers that the CBSC process is fair, thorough, sensitive to issues raised by complainants (even a single complainant), responsive, thoughtful and, considering the circumstances and the numbers, quick and efficient.

Broadcaster Responsiveness

In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant. Although the broadcaster need not agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner. In this case, the Panel finds that the broadcaster’s response was, in this regard, quite helpful and informative (and thoughtful in its acknowledgment of the delay in the initial response to the complainant). Bravo!’s explanation of its programming raison d’être and provision of background regarding the film and the rationale for the inclusion of the coarse language are interesting. While they do not represent a justifiable defence in terms of the codified standards, it is not unreasonable to furnish such explanations to a complainant. While the complainant was justified in rejecting these explanations, the Panel finds that Bravo! has fully met its CBSC membership responsibility of responsiveness on this occasion.

ANNOUNCEMENT OF THE DECISION

Bravo! is required to: 1) announce the decision, in the following terms, once during prime time within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which RKO 281 was broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by Bravo!.

The Canadian Broadcast Standards Council has found that Bravo! breached the scheduling provision of the Canadian Association of Broadcasters’ Code of Ethics in its broadcast of the feature film RKO 281 on November 20, 2004. By broadcasting the film, which contained frequent instances of coarse language before the 9:00 pm Watershed hour for programming intended for adult audiences, Bravo! has violated Clause 10 of the Code.

This decision is a public document upon its release by the Canadian Broadcast Standards Council.