CFXL-FM re a comment made on Tom Kent

PRAIRIE REGIONAL PANEL
CBSC Decision 11/12-1195
July 18, 2012
D. Ish (Chair), C. Cowie (ad hoc), D. Dobbie, V. Dubois, E. Shia

THE FACTS

CFXL-FM (XL 103 FM, Calgary) broadcasts the American program Tom Kent from 6:00 to 11:00 pm.  Tom Kent is an American radio host who distributes his programming throughout North America via his company, the Tom Kent Radio Network.  The Tom Kent show features music and some talk.  On the episode of February 10, 2012 at approximately 7:36 pm, Kent had a conversation with a listener about an Austrian man who was planning a world record parachute jump.  Kent and the caller made the following comments (a slightly longer transcript can be found in Appendix A):

caller:   I wonder how many people are going to be looking up at him thinking “Is it a bird?  Is it a plane?”  And then when he splats on his [sic] ground, they’ll say “Well, it definitely wasn’t Superman”.

Kent:    [chuckles]  This is true.  [caller laughs]  They’ll say it was that famous chinaman, Sum Dum Guy.

On that same date, a listener filed a complaint regarding the use of the word “chinaman”. She found the word racist, offensive and unacceptable in the present day.  The station wrote to the complainant on February 15.  The broadcaster noted that the program originates in the United States where sensibilities might be different, but it agreed with the complainant that the word is inappropriate on Canadian airwaves and acknowledged its responsibility for what goes out over its frequency.  It offered “a very sincere apology and a promise to do better in the future”.  The complainant nevertheless submitted her Ruling Request on February 21, expressing concerns about a Canadian broadcaster’s ability to regulate a program that originates elsewhere and requesting a concrete explanation of how the broadcaster intended to achieve that result, rather than just a “vague” promise to do better.  (The full text of all correspondence can be found in Appendix B).

THE DECISION

The CBSC Prairie Regional Panel examined the complaint under the following provisions of the Canadian Association of Broadcasters’ (CAB) Code of Ethics and Equitable Portrayal Code:

CAB Code of Ethics, Clause 2 – Human Rights

Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 2 – Human Rights

Recognizing that every person has the right to the full enjoyment of certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

CAB Equitable Portrayal Code, Clause 9 – Language & Terminology

Broadcasters shall be sensitive to, and avoid, the usage of derogatory or inappropriate language or terminology in references to individuals or groups based on race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.

[…]

(b)        It is understood that language and terminology evolve over time.  Some language and terminology may be inappropriate when used with respect to identifiable groups on the basis of their race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.  Broadcasters shall remain vigilant with respect to the evolving appropriateness or inappropriateness of particular words and phrases, keeping in mind prevailing community standards.

The Panel of Adjudicators read all of the correspondence and listened to the challenged segment. It concludes that CFXL-FM did not violate Clause 2 of the CAB Code of Ethics or Equitable Portrayal Code, but it did violate Clause 9(b) of the CAB Equitable Portrayal Code.

Availability of Foreign Programming in Canada

Canadian broadcasters are fully entitled to source their programming from anywhere in the world. Under the Canadian Broadcasting Act, however, they are responsible for all programming broadcast on their airwaves and must ensure that that programming meets Canadian broadcasting standards regardless of its source.[1]  CFXL-FM clearly acknowledged this responsibility in its letter, although it did not specify how it would achieve that result.  The Panel appreciates CFXL-FM’s assurance that it will “do better in the future” in monitoring its foreign programming, but reiterates that the CBSC does not have any jurisdiction to prescribe to broadcasters the methods by which they will do so.

Abusive or Unduly Discriminatory Comments on the Basis of Race or Ethnicity

The CBSC has applied the Human Rights Clauses of the CAB Code of Ethics and Equitable Portrayal Code in numerous previous decisions.  In its application of those (nearly identical) clauses, the CBSC has stated that, in order to reach the level of “abusive” or “unduly” discriminatory, the comments must make extremely negative generalizations about an identifiable group.[2]

In this case, there were no comments made that were actually about Chinese people.  Kent’s point was that, if the Austrian parachuter’s jump went awry, people would consider it a “dumb” stunt and people would say he was “some dumb guy”.  Kent invoked the play on words by which the phrase “some dumb guy” sounds like a Chinese name, “Sum Dum Guy”.  He made his joke clear through his reference to a “famous chinaman”.  Although it was perhaps insensitive to mock Chinese names in this manner, Kent did not make any negative generalizations about Chinese people in a broad sense.  The Panel, therefore, finds no breaches of Clause 2 of the CAB Code of Ethics or Equitable Portrayal Code.

Derogatory Terminology

The Panel reaches a different conclusion with respect to the word “chinaman”. Although the word was used in this instance in a seemingly light-hearted manner, the Panel notes that most modern English-language dictionaries denote the word as offensive or pejorative.  The word has evolved since at least the late 1800s to become a pejorative term to designate Chinese people and even occasionally persons of any Asian ethnicity.  It is not the equivalent of “Englishman”, “Irishman”, or “Dutchman” (among others) as those terms have not been widely used to express prejudice or racism against those national groups.  While the term may not be as harsh as some other racist terms that could be used to refer to Chinese people or other racial/ethnic/national groups[3] and Kent’s use of it was not particularly malicious, it is nevertheless insensitive and inappropriate.  Given “chinaman”’s historical evolution to become a pejorative term, the Prairie Panel considers it sufficiently derogatory as to be unacceptable on Canadian airwaves and thus in violation of Clause 9(b) of the CAB Equitable Portrayal Code.

Broadcaster Responsiveness

In all CBSC decisions, the Panels assess the broadcaster’s response to the complainant. The broadcaster need not agree with the complainant’s position, but it must respond in a courteous, thoughtful and thorough manner.  In this case, CFXL-FM agreed with the complainant about the unacceptability of the word, offered a sincere apology and assured her that similar incidents would not recur.  Although the complainant sought a more specific course of action, the CBSC considers the broadcaster’s reaction to be very responsive to the complainant’s concerns in this case.  The broadcaster fulfilled its obligations of responsiveness and nothing further is required in this regard in this instance.

Announcement of the Decision

CFXL-FM is required to: 1) announce the decision, in the following terms, once during peak listening hours 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 Tom Kent was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts 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 a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CFXL-FM.

The Canadian Broadcast Standards Council has found that CFXL-FM (XL 103 FM) violated the Canadian Association of Broadcasters’ Equitable Portrayal Code in its broadcast of Tom Kent on February 10, 2012.  The program contained a pejorative term for people of Chinese origin.  This violated Clause 9(b) of the Code, which prohibits derogatory references based on race, or national or ethnic origin.

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

[1] CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997) and CFYI-AM and CJCH-AM re the Dr. Laura Schlessinger Show (CBSC Decision 99/00-0005+, February 9 and February 15, 2000).

[2] See the following decisions for examples of comments that did and did not violate the Human Rights Clauses: The Comedy Network re Comedy Club 54 (CBSC Decision 97/98-1242, February 3, 1999); CKTF-FM re comments made on Les méchants matins du monde (CBSC Decision 00/01-0705, April 5, 2002); CFYI-AM re Scruff Connors and John Derringer Morning Show (CBSC Decision 01/02-0279, June 7, 2002); and CKOI-FM re a segment by Cathy Gauthier on Fun radio (CBSC Decision 04/05-1729, September 9, 2005).

[3] See the following decisions for other cases in which the CBSC has dealt with racial/ethnic terminology: CFRA-AM re The Lowell Green Show (Somalia Commission Report) (CBSC Decision 96/97-0238, February 20, 1998); CKTB-AM re an episode of the Phil Hendrie Show (CBSC Decision 02/03-0383, May 2, 2003); CIDC-FM re a parody of the carol “Twelve Days of Christmas” (CBSC Decision 10/11-0665, July 12, 2011); CFMT-TV re Gwai Lo Cooking (CBSC Decision 99/00-220, July 6, 2000); SRC re Bye Bye 2008 (CBSC Decision 08/09-0620+, March 17, 2009).