CHIK-FM re Les Grandes Gueules

QUEBEC REGIONAL PANEL
(CBSC Decision 00/01-0486)
G. Bachand (Chair), S. Gouin (Vice-Chair), R. Cohen (ad hoc),B. Guérin, T. Rajan (ad hoc)

THE FACTS

The complainant wrote the CBSC on January 8, 2001 regarding remarks allegedly made on the show Les Grandes Gueules on CHIK-FM (Quebec City) at about 12:25 pm on December 4, 2000.  The comments, which were declared by the listener to be homophobic, had apparently been raised by her in a meeting with the station’s Program Director on the day of the show.  The complainant followed that meeting with a letter to the broadcaster, in which she wrote (this letter, and all the other correspondence in this file, can be found in the Appendix):

[translation]

Further to our conversation this afternoon in your office, I am sending you, in written form, my concerns about the “sketch” heard today on your airwaves around 12:25 pm. I turned on my radio at the aforementioned time and immediately heard a “sketch” in which one of the hosts was speaking in “franglais”, calling the other hosts “faggots” and “testicle-lovers”.  I can’t tell you whether this tone continued, since I turned off my radio after about 30 seconds.

As I told you, the word “faggot” in English is so inflammatory, so insulting and prejudiced that it is never used. As I said this afternoon, I would put it on the same level as “nigger”.  It has only one purpose:  to hurt.  The fact that the show originates in Montreal makes the situation even more insulting:  it seems to me very unlikely that professionals living in Montreal could mistakenly think that their choice of words was inoffensive.

Mr. [S.], I have lived in Quebec City for ten years and your station is far from my first choice, but I have to say I have never heard such poorly-chosen, irresponsible and hurtful words and all in the name of “humour”. I think not only of my own sensitivity, but of young people (and less young people) who have just had confirmed either their homophobic prejudices or their fear that they will never be accepted as homosexual.  (You know that suicide is the primary cause of death among adolescent homosexuals.)

The Program Director replied on December 18:

[translation]

Further to your complaint of December 4, please be aware that the network producer has been informed of your message.

Please know that RADIO Énergie always listens to its audience and, even with respect to humour, we are extremely concerned with the quality of our writing and delivery.

Then, on January 8, 2001, the complainant wrote to the CBSC for the first time. Her letter said in part:

Below you will find copies of my correspondence with [the Program Director] of the station, with whom I spoke in person at the radio station the same day as the diffusion of the program in question. I think that the contents of the correspondence are self-explanatory.  I would only add that this particular station is well-known for its “on-the-edge” humour.  I would consider this particular show however, as being “over-the-edge”, in addition to the numerous adjectives I employed in my correspondence […].  As I told [the Program Director] in person, one can agree or disagree with a particular sense of humour, but this is not what is in question in this particular incident:  inappropriate, prejudiced and inflammatory comments are what is at issue.

I was sorely disappointed in [the Program Director]’s response to my complaint. In fact, I would characterize it more precisely as a non-response, as he at no time addressed my concerns, but rather simply acknowledged my communication with him.

I hope you will find this complaint recevable [sic]: homophobia seems to be the only remaining acceptable prejudice.  I certainly do not think that it should be openly encouraged on the public airwaves.

Although requested by the CBSC to reply to the January 8 letter (which is a standard requirement and a membership responsibility of all CBSC members), the broadcaster never did. Having heard nothing, the complainant requested, on March 9, that the CBSC send the matter to adjudication.

 

A Complication: No Logger Tapes

By the time the January 8, 2001 letter arrived at the CBSC, the mandatory retention period for logger tapes (28 days) had passed. Notwithstanding that, an assistant at CHIK-FM informed the CBSC’s Correspondence Officer that the tapes were available when she called to ask that they be held, on January 8.  By letter of May 11, the CBSC requested the tapes.  Having no response, the CBSC wrote again on August 14.  The station replied to this letter on August 23, saying, in part:

[translation]

Since it appears that no correspondence other than your latest letter has been conserved by the station, we require your collaboration in order to help us clarify this file. Would you be so kind as to forward a copy of all correspondence prior to that of August 14.  In your letter, you reference your May 11 request for the logger tape of a program of December 4, 2000.  Since we are only required by law to retain logger tapes for 30 days, if no request was made before May 11, that would explain why the logger tapes were not available.

As requested, the CBSC sent copies of the correspondence that the station had not retained but still had no explanation until days before this meeting of the Quebec Regional Panel on April 5, 2002 (the communications chronology is given at greater length below under the heading “Broadcaster Responsiveness”).  The letter of March 28 from the Vice-President of Corporate Affairs of Astral (CHIK-FM’s corporate owner) reads as follows, in part:

[translation]

Unfortunately, due to a miscommunication within the station, the logger tapes of the program were not conserved by the station despite your request to do so and we are sincerely sorry.

The station must conserve logger tapes for a period of 28 days and the CBSC’s written request to this effect is dated February 16, 2001, that is more than 28 days following the program of December 4, 2000. After numerous discussions with members of management who are involved in this matter, I have been informed that the [Program Director] responded to [the complainant] on December 18, 2000 in addition to a telephone conversation with her.  The Program Director believed the matter was resolved and mistakenly chose not to conserve the logger tape.  In addition, the assistant to CHIK-FM’s General Manager at the time no longer has any recollection of the January 8, 2001 verbal request that the Correspondence Officer apparently made regarding putting the tapes aside.  Consequently, the loggers tapes were not conserved and we are unable to respond to your request.

In any event, I will comment on the program Les Grandes Gueules in general.  The concept of the program is based on humour and parody and we believe that the audience understands the caricatural nature of the characters and the stories presented.  We regret that some comments made during our programming offended [the complainant].

Rest assured that we take our listeners’ concerns seriously and that is why all on-air staff is expected to respect our content policy in order to provide high quality programming and to avoid offensive remarks, among other things.

Once again, we apologize that this file was not treated with our customary care.

In the end, in the absence of the requisite logger tapes, the Quebec Regional Panel was unable to consider the substance of the challenged broadcast.

 

THE DECISION

Given the absence of the logger tape of the December 4, 2000 show, the Quebec Regional Panel was unable, as noted immediately above, to consider the substantive aspects of the complaint under Clause 2, the Human Rights Clause, of the CAB Code of Ethics, as it normally would; however, it did examine those aspects of the complaint which relate to the broadcaster’s obligations with respect to the retention of logger tapes and responsiveness to the complainant.

For the reasons provided below, the Quebec Panel does not find any breach by CHIK-FM with respect to the logger tape retention requirement; however, it does consider that the broadcaster has breached the CBSC membership requirement of responsiveness to the complainant.

 

The Retention of Logger Tapes

It is a well-recognized obligation of radio broadcasters that, pursuant to Section 8(5) of the Radio Regulations, 1986, they must retain “a clear and intelligible tape recording or other exact copy of all matter broadcast […] for four weeks from the date of broadcast.”  It is equally a condition of membership in the CBSC that that logger tape be retained for the same 28 days and furnished to the CBSC upon request for its complaint resolution process.

The difficulty in the present case is that the dialogue between the complainant and the broadcaster, which began immediately upon the date of the broadcast, never resulted in a complaint to the CBSC before January 8, namely, 35 days following the broadcast. Consequently, the broadcaster was under no obligation to retain the logger tape and the Panel does not consider that the apparent acknowledgment on January 8 by a station employee not in a position of authority that the tapes had been reserved is convincing evidence that they were in fact available as of that date.  There is certainly no other confirmation of their existence more than 28 days after the broadcast anywhere else in the file.  There is consequently no breach by the broadcaster of its obligation to retain the logger tapes for the 28-day period.

It is regrettable that the complaint did not arrive in the CBSC’s complaint resolution process earlier, particularly since the complainant was clearly as diligent as possible in first bringing the matter to the attention of the station on the very day of the broadcast.  That is, however, what happened and the CBSC has no alternative, in the circumstances, but to abandon any possible consideration of the complainant’s allegations regarding the actual content of the program in question.

 

Broadcaster Responsiveness: Past CBSC Decisions

It has long been the obligation of the broadcaster to be responsive to any written complaint from an audience member that enters the CBSC’s complaint process. That requirement was first dealt with by the B.C. Regional Panel in CFOX-FM re The Larry and Willy Show (CBSC Decision 92/93-0141, August 30, 1993).  That Panel explained the rationale in terms of both the original CRTC policy relating to the mandate of the Council and the CBSC’s own Manual:

In the CRTC’s Public Notice relating to the Canadian Broadcast Standards Council (Public Notice CRTC 1991-90), the Commission noted that one of the three major areas of responsibility of the CBSC was ‘to provide a means of recourse for members of the public regarding the application of these standards’ (p. 5, reiterated in the Manual of the CBSC at p. 5) and, in the Conclusion thereto, it stated that it was ‘pleased to note […] the strong educational role the CBSC has taken upon itself.’ (at p. 6)  It further declared its satisfaction with the complaint-resolution process established by the Council:

The Commission is satisfied that the complaints process that has been established is a useful mechanism for resolving public concerns about the programming broadcast by private Canadian radio and television stations. […] The Council is committed to make every effort to resolve complaints at the level of the local broadcaster.

The extent to which the CBSC has melded the educational and communication processes can be seen in the following part of its section on Guiding Principles in the Manual, which provides the following (at p. 9):

Direct dialogue between a complainant and a broadcaster is the best means of resolving a concern. The Council will not consider a complaint until it is satisfied that sincere and demonstrable efforts have been made by both parties to deal with the matter to their mutual satisfaction.

Thus, in the course of complaint resolution, the CBSC considers that it is firmly within its mandate to evaluate not only the complaint itself against the standards established by the various Codes which it administers but also the responsiveness of the broadcaster in dealing with the viewer or listener.

In CFTO-TV re Wide World of Fun (Night Beat News) (CBSC Decision No. 94/95-0088, August 23,1995), the Ontario Panel said, of a particular broadcaster reply:

It was, however, clear that [the broadcaster representative] did not agree with the complainant. It is, of course, his right not to agree with any given complaint although it is the Council’s view that he is obliged to respond satisfactorily to a complaint.  Disagreement and disregard are not the same thing.

In CJRQ-FM re Opinion Poll (CBSC Decision 94/95-0135, March 26, 1996), the same Panel referred to its earlier decision in CKVR-TV re Just for Laughs (CBSC Decision 94/95-0005, August 23, 1995):

The response of the broadcaster in this case is not unlike that in CKVR-TV re Just for Laughs (CBSC Decision 94/95-0005, August 23, 1995).  In that case, the brief (114-word) reply was considered by the Ontario Regional Council to be “apologetic, and thus not totally unresponsive to the viewer.”  In that case the Council decided that the response did not at all address “the substance of the viewer’s complaint.”   In this matter, the station’s reply was shorter (only 32 words), not at all apologetic and did not respond to any of the concerns of the viewer.  In the circumstances, the Ontario Regional Council considers that CJRQ-FM did not adhere to the standard of responsiveness expected of all CBSC members.

In CIII-TV (Global Television) re an episode of Seinfeld (CBSC Decision 96/97-0074, May 8, 1997), the Ontario Panel observed, with respect to a borderline response:

The process by which the CBSC becomes involved in adjudicating a dispute between a broadcaster and a listener/viewer places reasonable, but not insignificant, demands on the complainant. A simple phone call is not enough to trigger the process.  The CBSC procedures require that a complainant must take the time to put his/her concerns in writing, and while no knowledge of broadcast codes is required of the complainant, the concerned individual must outline why he or she believes that the content of the broadcast was not appropriate.  Often, in the experience of the Council, the letters provide lengthy explanations of the reason for the complainant’s concern.

There exists a corresponding demand upon the broadcaster to treat the complaint with respect. Ideally, the station’s reply should reflect its own review of the challenged program in light of the concerns of the complainant and explain in a clear and direct fashion why the program does not violate any of the industry Codes and standards to which the station has agreed to adhere.  At the very least, it ought to be responsive to the concerns of the complainant.

Finally, in terms of previous CBSC decisions, this Panel refers to its earlier decision in TQS re Scheduling of Advertisements and Promos (CBSC Decisions 98/99-0212, 0213 and 0882, June 23, 1999) in which the Quebec Regional Panel found “several problems” with the broadcaster’s response to complaints:

In the first place, the broadcaster totally ignored the complainant’s letter until the CBSC, following up on the issue two months later, provoked a reply. On January 26 and March 10, the broadcaster merely referred to “an error of rotation” and, on June 28, the broadcaster’s response could hardly have been said to have even attempted to address the issues raised by the complainant.  It only reiterated the complainant’s own observation that the promo in question aired “just prior to a program dealing with farm animals.”  The entire substance of the broadcaster’s response was that “Upon review, we note that the promo was in fact broadcast but in the break preceding the program.”  Broadcasters owe more to their audience than such a brush-off, particularly in circumstances where they are, by their own admission (as well as, ultimately, the CBSC’s finding), in breach of the Violence Code.  Moreover, they are required to be responsive in terms of their membership in the CBSC.

In the circumstances, while the broadcaster was not in breach of the Council’s standard of responsiveness with respect to its reply of January 26 and was on the verge of being in breach by not responding to the complaint of December 30 until prompted by the CBSC to do so, the Council is of the view that the letter of June 26 simply did not constitute a substantive response and was, consequently, in breach of the CBSC’s members’ requirement of responsiveness to complainants.

 

Application of These Principles to The Present Matter

Before considering the application of the foregoing principles to the matter at hand, the Panel considers it useful to lay out a chronology of the contacts and correspondence in point form.

December 4, 2000: Date of broadcast

December 4, 2000: Complainant’s meeting with CHIK-FM’s Program Director

December 4, 2000: Complainant’s letter to CHIK-FM’s Program Director

December 18, 2000: Program Director’s reply to complainant’s letter

January 8, 2001: Complainant’s letter to the CBSC

January 8, 2001: CBSC’s request for CHIK-FM to hold logger tapes

January 16, 2001: CBSC’s forwarding of January 8 complaint to CHIK-FM for response

March 9, 2001:  Complainant’s letter to the CBSC indicating she had not received a response from CHIK-FM

May 11, 2001:   CBSC’s first request for tapes

August 14, 2001:  CBSC’s second request for tapes

August 23, 2001:  Letter received by CBSC from Astral’s Vice-President indicating that they did not have a record of any past correspondence

October 24, 2001:  CBSC forwarded all previous correspondence to CHIK-FM’s General Manager

December 20, 2001:  CBSC forwarded all previous correspondence to Astral’s Vice-President of Corporate Affairs

January 14, 2002:  Astral’s letter to CBSC indicating that they will review the matter and get back to the Council in two weeks

March 25, 2002:   CBSC’s telephone call to Astral asking for the information promised in January

March 28, 2002:   Astral’s fax to the CBSC providing explanantion for the handling of this file (carbon copied to complainant)

April 5, 2002:   Quebec Regional Panel adjudication meeting

In the matter at hand, the broadcaster has, in essence, ignored both the complainant and the CBSC. In its response to the complainant’s letter of December 4, 2000 (before the CBSC was involved in the file), the broadcaster sent an excessively brief reply (53 words), which did not address a single point raised by the complainant.  From the time of the CBSC’s involvement, CHIK-FM never again sent a single word directly to the complainant, despite its CBSC membership requirement to do so.  The broadcaster was so cavalier about the entire file that it did not even retain the correspondence relating to the file.  And then, despite the undertaking of a representative of the corporate group owner on January 14, 2002 to deal with the file satisfactorily within “the next 2 weeks”, it was only a call from the CBSC to the head office ten weeks later that even generated a response eleven days before this meeting.  That this matter has dragged one year and four months from the date of the radio show until the date of this meeting has been almost singlehandedly due to the consistent failure or refusal by the broadcaster to co-operate in its resolution.

It is the view of the Quebec Regional Panel that the utter failure of the broadcaster to respond to the complainant despite the active attempt of the CBSC Secretariat to encourage that event constitutes a significant breach of the Council’s conditions of membership.

 

ANNOUNCEMENT OF THE DECISION

CHIK-FM is required to: 1) announce this 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 in the time period in which Les Grandes Gueules was broadcast on December 4, 2000; 2) within fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the announcements to the complainant who filed the Ruling Request; and 3) 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 CHIK-FM.

The Canadian Broadcast Standards Council has found that CHIK-FM has breached one of its obligations of membership in the Canadian Broadcast Standards Council by initially failing to respond to a letter of complaint from a listener regarding a show broadcast on December 4, 2000. By its failure to co-operate with either the listener or the CBSC in the resolution of this complaint, despite attempts on the part of the CBSC to encourage it to do so, CHIK-FM unnecessarily dragged out the resolution of this matter over a period of almost 16 months.

 

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