CFYI-AM re The Touch of Health

ONTARIO REGIONAL PANEL
(CBSC Decision 99/00-0720)
R. Stanbury (Chair), P. Fockler (Vice-Chair), M. Hogarth (ad hoc), S. Whiting and M. Ziniak

THE FACTS

On July 14, 2000, the program The Touch of Health, a radio talk show whose hostanswered questions and gave advice concerning alternative health matters, was removed byCFYI-AM (North York) from its programming schedule. On July 20, the host of the programsent a letter of complaint to the CBSC (the full text of which can be found in the Appendix hereto), stating, in part, that “[t]his actionagainst the show and it being taken off the air is a direct social and political assaultagainst natural / alternative health.” In her view, “[w]ith the inevitable lossof the Touch of Health radio show, there will be a loss of ‘balanced’broadcasting in this sector.”

The broadcaster responded to the complainant in a letter dated August 8, which was onlyfaxed to the CBSC on September 28. (The full text of that letter is also included in theAppendix below.) In support of its claim that the decision to remove the program did notaffect the balance of its programming, the broadcaster stated:

[W]e have removed all medical (traditional andnon-traditional) programs from our week-end programming. As I shared with you, therationale for this is two-fold: first is the concern over legal liability with respect togiving medical advice. The second reason is our desire to improve the quality of ourweekend programming in order to generate increased ratings and revenue.

On August 4, the complainant indicated that she was unsatisfied with thebroadcaster’s response and requested that the Ontario Regional Panel rule on thematter. Customarily, the CBSC does not deal with Ruling Requests which are received priorto the receipt of the broadcaster’s response, to which the Council assumes the RulingRequest is a reaction. In this case, however, the CBSC Secretariat made an exception giventhe complainant’s subsequent e-mail dated October 11 expressing her dissatisfactionwith the broadcaster’s response.

THE DECISION

The CBSC’s Ontario Regional Panel considered the complaint under Clauses 6 and 7of the CAB Code of Ethics, which read, in pertinent part, as follows:

CAB Code of Ethics, Clause 6, Paragraph 3

It is recognized that the full, fair and proper presentation ofnews, opinion, comment and editorial is the prime and fundamental responsibility of thebroadcast publisher.

CAB Code of Ethics, Clause 7 (Controversial Public Issues)

Recognizing in a democracy the necessity ofpresenting all sides of a public issue, it shall be the responsibility of member stationsto treat fairly, all subjects of a controversial nature. Time shall be allotted with dueregard to all the other elements of balanced program schedules, and to the degree ofpublic interest in the questions presented. Recognizing that healthy controversy isessential to the maintenance of democratic institutions, the broadcast publisher willendeavour to encourage presentation of news and opinion on any controversy which containsan element of the public interest.

The unusual nature of the complaint meant that there was not a program tape to listento. In the circumstances, Panel Adjudicators reviewed all of the correspondence,considered it in terms of the aforementioned Code provisions and conclude that thestation’s decision to remove the program The Touch of Health is not in breachof any of them.

Balanced Programming

This decision marks the CBSC’s first opportunity to deal with thebroadcaster’s duty to maintain balance via its programming schedule. While the CBSChas dealt with the issue of internal balance in the context of a specific program,it has never before been asked to review a broadcaster’s selection of programs inorder to ensure that various points-of-view are represented.

In either case, the application of the Code provisions relating to balance does notdiffer substantially. In a case of internal program balance, namely, CHOG-AM re TheShelley Klinck Show (CBSC Decision 95/96-0063, April 30, 1996), the Ontario RegionalPanel combined the effect of Clauses 6 and 7 of the Code of Ethics in the followingway. It said:

Although the Council recognizes that Clause 6,paragraph 3 and Clause 7 of the Code of Ethics offer different nuances, itconsiders that their combined effect is to require balanced programming when dealing withcontroversial issues. Accordingly, rather than considering each provision individually,the Council is of the view that it may deal with the “balance requirement” as awhole.

In that decision, the Panel was dealing with a complaint concerning the fairness andbalance of an open-line discussion entitled “Women who falsely accuse men ofrape”. In finding no Code breach, the Panel made the following comments regarding abroadcaster’s responsibility to ensure balance:

Generally, the format of open-line programs hasthe potential of offering an opportunity for balance; however, the Councilrecognizes the important role of the host (and the producer) in ensuring balance. Theywield considerable power in terms both of the choice of callers who get to air and theability of the on-air host to cut off callers at will. The Council finds that, in thiscase, Ms. Klinck made a valiant effort to achieve balance in the treatment of thecontroversial issue chosen as a topic for the show. As in the case of CFRA-AM re SteveMadely (CBSC Decision 93/94-0295, November 11, 1994), her success may have beenlimited but this may have been a matter beyond her control. In the Steve Madelydecision, the Ontario Regional Council interpreted the requirements of clause 7 in thefollowing way:

In terms of the requirements of that clause, the broadcast publisher, through its host,was, as required, endeavouring to “Encourage presentation of news andopinion” on a controversial subject. The host’s problem was, in his view, thatthe audience was not interacting, not that he was refusing access.Furthermore, he returned to the subject once his dramatic stratagem pulled the listenersback into the dialogue.

In this case, the Council is of the view that the host encouraged a balancedpresentation and discussion of the issue of false accusations of sexual assault. Thepublic had been given the opportunity to call in and comment, and the host herself triedto balance the viewpoint of her guest. As a result, the Council finds that the program didnot violate clauses 6 and 7 of the CAB Code of Ethics

While balance may be achieved within the program in question, the CBSC hasestablished, as a general rule, that balance in dealing with a controversial public issuemay be achieved through the overall programming of the broadcaster. As long ago asits decision in CTV re an episode of The Shirley Show (CBSC Decision 93/94-0261,August 18, 1995), the Ontario Regional Panel put that point in the following terms:

Reflecting the CRTC’s policy, it has been theview of the CBSC that a program dealing with a controversial issue need not have built-inbalance. Broadcasters are entitled to balance biased programming by presenting the otherside of the issue on other programs dealing with the same issue. If an individual programis not internally balanced, the Council may need to look at the overall programmingprovided by the broadcaster in order to see whether the broadcaster has met itsresponsibility pursuant to Clause 7 of the Code of Ethics.

In the present matter, the Panel is of the view that the broadcaster has achievedbalance in its overall programming. Based on the information provided to the Panel, CFYIhas provided balanced programming in this area at all material times. While The Touchof Health was being broadcast by CFYI, balance was maintained between programs thatprovided traditional health information and those that provided alternative healthinformation. Since CFYI’s decision to cancel the program in question, the Panelrelies on the broadcaster’s statement that “[CFYI] has removed all medical(traditional and non-traditional) programs from [its] week-end programming.” For thereasons discussed below, the Panel accepts the broadcaster’s decision to meet itsobligations by removing all programming dealing with that particular issue.

Programming Choices

With respect to this issue, namely, the choice of the programming which makes upa broadcaster’s schedule, the Panel must make it very clear that such decisions are primordiallythe responsibility of the broadcaster. They reflect a mix of commercial, creative andsocietal values and concerns, supplemented by a measure of programming instinct. Theyconstitute the formula which is the basis of every broadcaster’s carving ofits niche in the marketplace. They are a part of every broadcaster’s determination ofthose factors which will differentiate its programming from those of other licensees inorder that it will be able to attract its own audience. Broadcasters are, needless to say,also entitled to make judgments as to the quality of their programming without thosejudgments being challenged except, in a sense, by the reception of the programming choicesby the marketplace. It is hardly for the CBSC to supplant thatquintessential broadcaster judgment unless the circumstances and apparent rationale forthe broadcaster’s decision are clearly so dire and egregious that CBSC interventionis, by any reasonable assessment, called for.

Moreover, it should be borne in mind that broadcasters are required to abide byspecific broadcasting requirements, as set out in the various legislative instruments andcodes that apply to this industry. For instance, subparagraph 3(1)(d)(ii) of the BroadcastingAct requires that broadcasters must, among other things,

encourage the development of Canadian expressionby providing a wide range of programming that reflects Canadian attitudes, opinions,ideas, values and artistic creativity, by displaying Canadian talent in entertainmentprogramming and by offering information and analysis concerning Canada and other countriesfrom a Canadian point of view.

In addition, Section 2(3) of the Broadcasting Act expressly recognizes thatbroadcasters have a right to “freedom of expression and journalistic, creative andprogramming independence.”

In this case, it appears that CFYI’s decision to remove The Touch of Healthfits into a general plan to reorganize its programming schedule with respect to matters ofhealth. It provided reasons for the decision to remove the show which are, on their face,entirely reasonable. There is not a shred of indication that the reason was other than asstated in the broadcaster’s reply and the Panel has dealt above with the issue ofbalance in programming. In the present matter, the Ontario Regional Panel considers thatCFYI’s decision to remove The Touch of Health from its programming scheduledoes not violate any Code provisions.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint, the CBSC alwaysassesses the responsiveness of the broadcaster to the substance of the complaint.In this case, while the Panel would have preferred a more comprehensive explanation of thestation’s efforts to maintain balance in its programming, it considers thatCFYI’s response addressed the issues raised by the complainant fairly. Nothing moreis required. Consequently, the broadcaster has fully complied with the Council’sstandard of responsiveness.

This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.