CHML-AM re the Bob Bratina Morning Show

ontario regional panel
R. Stanbury (Chair), M. Ziniak (Vice-Chair), D. Braun (ad hoc), R. Cohen (ad hoc),

THE FACTS

CHML-AM (AM900, Hamilton) broadcasts the Bob Bratina Morning Show daily from 6:00 to 9:00 am.  The host, Bob Bratina, had worked in broadcasting since 1965 and had been hosting this program on CHML since 1989.  In 2004, he ran in the Hamilton municipal elections and was elected as city councillor for Ward 2; he was re-elected in November 2006.  Bratina recused himself from his on-air duties during both the 2004 and 2006 election campaign periods as required by Canadian Radio-Television and Telecommunications Commission (CRTC) rules (which are discussed below), but he returned to hosting the program once those campaigns were over.

Each episode of the program features a number of different segments in which the host and guests or other AM900 hosts discussed a range of current issues.  On March 19, 2007, at 7:02 am, Bratina talked about an article that had appeared in the local daily newspaper, the Hamilton Spectator, commenting on his position relating to the possible establishment of a “red light” district in the City of Hamilton.  His monologue was as follows:

I’ve got to weigh in on a story that appeared with my name on it regarding red light districts.  And the story says, uh, “Give City Red Light District, Bratina Says”.  That’s the headline.  Bratina didn’t say that.  And it’s quite interesting because what I did say was that we do have encroaching in our neighbourhoods, uh, in the north end, in, uh, Court Town, in other neighbourhoods throughout, beyond Ward 2 and all over the place these so-called, uh, aromatherapies and bath-houses and whatever, which are, in fact, uh, places, adult entertainment parlours, where females are touching males.  I’m not against that.  You know, that’s part of life.  What I am against is that they’re in, right beside, in one case, right beside a family with children who see customers arriving at all hours of the night and other problems associated with it.

So, I shared with my, uh, colleagues at City Hall and staff, uh, a draft by-law from the City of Ottawa.  And, and what I said was that the way it is now, we, we can’t seem to control where these places are located and I said even a red light district would be better than this.  But I’m not proposing a red light district.  “Give City Red Light District, Bratina Says.”  Didn’t say that.  Not only that, I told the reporter about three times that that was not what I was about.  It was about working, drafting a by-law, doing whatever we can to prevent what I said.  And then the reporter goes on about “Well, what ward would it be if was … ?”  I said this isn’t about wards.  There could be, as there is now, one here, one there, but they need to be in industrial areas or commercial areas and areas where they’re not in, in this case I was referring to, a family living next door, park across the street, school a block away.  Don’t put it there.

So the whole thing starts.  And one of the councillors, “Well, not in my neighbourhood”.  And people write blogs that say “Why doesn’t he put it on his street?”  It is on my street!  I’m trying to get it off my street!  But it’s just silly, you know, like.

And the most disturbing thing is the e-mail from which this was drawn was an internal e-mail and somebody shared it with the news reporter.  So would you please not bother sending me any arguments?  And I’m not even saying a red light district is wrong or right and I don’t want a public debate on a red light district.  All I want to do is find ways so that these facilities are not located in family-oriented neighbourhoods.  That’s all.  Thank you.

Later in the program, at 8:10 am, Bratina discussed the issue again in a conversation with fellow AM900 host Roy Green.  The relevant portion of that exchange was as follows (a full transcript can be found in Appendix A):

Green:  Hey, Bob.  I, um, I wanted to talk to you about the issue of a, you know, red light district in Hamilton.

Bratina: Sure.

Green:  Because, uh, there’s something that I’ve long believed that we need to have in our major urban centres to, to control the activity and to control where the, uh, the stroll, as it’s euphemistically called, is located.

Bratina: Well, okay.  Now I have to remind you, because we had this quick chat.

Green:  Yeah.

Bratina: That I was not, in my discussions with staff and committee, discussing a red light district.  I said what we have now, a red light district would be better.  But what I was aiming at was, was wording our by-law so that we could control the body rubs.

The CBSC received a complaint from a listener who was concerned in general that Bratina used his position as a radio host to promote his views of municipal issues.  She mentioned the March 19 segment about the red light district as one example.  She also suggested that he had unfairly insulted the newspaper and its reporters for misquoting him.  Her complaint, addressed to the station, was in part as follows (the full text of all correspondence can be found in Appendix B):

I am writing to express my concern about the use of the CHML morning program as a political forum for, and by, Bob Bratina.  I have been on the verge of writing this letter for quite a while now but today’s comments by Mr. Bratina, while on air as your morning radio announcer, were so appalling that I am actually taking the time to write to you to make a formal complaint.  My complaint is regarding the very ambiguous roles as radio announcer/Ward 2 councillor that Mr. Bratina continues to play on the CHML morning program.  If Mr. Bratina wants to be the CHML morning announcer, that’s fine.  However, if he wants to be the Ward 2 Councillor, then he should not be doing it on the air while employed by CHML as their radio morning announcer.

[…]  Whether one agrees or disagrees with him, using the morning show to showcase his political activities and viewpoint is not only irritating and annoying.  It is also downright inappropriate to use his time slot on air as a personal forum and this seems to be something that he doesn’t understand at all.  And, in fact, I am surprised that this mixture of morning man/politician is something that your corporation allows and supports.

[…]

This morning’s show demonstrated, yet again, that Mr. Bratina cannot make the distinction between his role as radio morning man and Ward 2 Councillor.  […]

Mr. Bratina then went on to castigate the reporter who had interviewed him over the issue of a “red light district” concept because she hadn’t written the story the way he wanted it.  Since the front page article identifies the reporter’s byline, this was a direct attack upon a Spectator reporter’s competency and veracity.  Why such an attack?  Well, according to Mr. Bratina, she did not report his words and comments as Councillor “accurately”.  Again, Councillor Bratina on the air and, I might add, the only with air time on this issue!

Since CHML is not putting the morning show on as a “paid political announcement”, why is this kind of behaviour tolerated by CHML?  I know that I am not alone in wondering why CHML morning show has allowed their morning show to become so one-sided and so politicized.  I hope that this letter will, at the very least, cause you to consider your policies/broadcasting code regarding what is acceptable in terms of a radio announcer’s role while hosting a public program.  I hope that your station can enforce a policy that will ensure that your listeners are not subjected to personal political sermons and unacceptable attacks upon other people and groups.

She later sent the CBSC a copy of an article that had appeared in the Hamilton Spectator entitled “Bratina blurs line between city hall, radio guy” which was critical of Bratina for having addressed the red light district matter on air during his program.

CHML’s General Manager responded with the following note:

Your email regarding our AM900 CHML morning host, Bob Bratina, was forwarded to me by our communications department.  While we certainly acknowledge your concerns, we would like to assure you that AM900 CHML does abide by the regulatory guidelines and broadcast codes that govern our industry in Canada and endeavour to act accordingly.  We are a responsible broadcaster, committed to providing a balanced presentation in news, opinion, comment and editorial when reporting on issues to our listeners in the greater Hamilton area.  We will, however, address your issues and concerns with Bob Bratina.

The complainant replied to that note, indicating that she was not satisfied with the station’s approach.  She then filed her Ruling Request with the CBSC on April 10 with the following additional comments:

I […] feel that [the General Manager’s] response does not acknowledge the validity of my complaint and the issues that I raised in the letter regarding Mr. Bratina’s use of the air waves for his own particular political purposes and views.

To state that CHML is a “responsible station etc., etc., etc.” is not my issue nor the focus of my concern.  My complaint is with regard to Mr. Bratina and I have outlined this fully in my original letter to you.

I had hoped that the General Manager would actually address the issues in her response but she does not.  To state that “We will, however, address your issues and concerns with Bob Bratina” is a meaningless statement.  How will these “issues and concerns” be “addressed”?  Is there any acknowledgement of the totally inappropriate behaviour by Mr. Bratina and will there be?  Since it was a public violation, will there be a public aknowledgement and apology?  All of these questions are left unclear in [the General Manager]’s disappointing “form letter” response.

Needless to say, I do not feel that my complaint(s) regarding Mr. Bratina have even been acknowledged, let alone appropriately addressed, by the General Manager.  It is for this reason that I am, therefore, requesting a Ruling on this complaint.

The station sent a second, lengthier response on April 24:

In your email you take issue with comments made by the Program host, Bob Bratina, suggesting that because Mr. Bratina is both a radio announcer and a city councillor, his comments that morning (and on other mornings, you argue), are inappropriate insofar as they constitute a conflict of interest.  […]

We have listened to the tape of the Program, and confirm that Mr. Bratina did make comments pertaining directly to this position as city councillor.  As a news talk station, we adhere to various rules, regulations and industry codes governing the programming we air, including the Radio Television News Directors Association of Canada’s Code of Journalistic Ethics (the “Code”), which are administered by the CBSC.  Our review of the broadcast you refer to reveals that on this occasion, Mr. Bratina failed to adhere to Article 6 of the Code, which states that broadcast journalists must “govern themselves on and off the job in such a way as to avoid conflict of interest, real or apparent”.

Since receiving your email, we have had discussions with the Program host about what constitutes appropriate on-air content.  More specifically, we have reviewed the applicable codes and standards with Mr. Bratina, emphasizing the importance of impartiality in the reporting of the news, particularly in light of the dual-role he plays.  We strive to ensure that our programming is objective and balanced, and will continue to monitor the Program with vigilance in order to maintain these standards.  We regret that you were troubled by our programming, and trust that this letter addresses your concerns.  We at the Station recognize the importance of listener feedback and appreciate all comments.

The complainant responded the same day, stating that, while she appreciated the additional response, she continued to believe that “public violations of the code require a public acknowledgement and an apology from Mr. Bratina to his listeners.”  She also noted that the broadcaster’s letter failed to address the issue of the “personal attacks launched by Mr. Bratina against the Spectator and, in particular, two reporters who work for the Spectator.”  On May 3, she wrote again to the CBSC reaffirming her desire for the Council to proceed with its review of her complaint.

The station’s parent company, Corus Entertainment, then sent a letter to the CBSC explaining some of the background to the situation:

We understand that the CBSC will be deciding whether Mr. Bratina and the station have breached certain Canadian broadcasting standards, as administered by the CBSC, and we ask that you take the following into consideration when reflecting on the matter.

In her original complaint dated March 19, 2007, [the complainant] stated that Mr. Bratina, co-host of the Morning Show, as well as Hamilton city councillor for Ward 2, had been using the Morning Show to “showcase his political activities and viewpoint”, which she claimed was “downright inappropriate”.  [The complainant] suggested further that Mr. Bratina had, on certain occasions, used his position on the Morning Show as his personal “soap-box”, and that he was therefore confusing his two roles:  on the one hand, his role as Morning Show co-host, and on the other, as councillor of Ward 2.

Mr. Bratina has been a broadcaster since 1965, and has been co-hosting the Program since 1989.  In 2004, Mr. Bratina decided to run for a position on Hamilton’s city council, and was elected councillor for Ward 2 on October 1, 2004.  Mr. Bratina was re-elected councillor for Ward 2 on November 14, 2006.  Mr. Bratina had informed Corus management of his decision to run for office as well as for re-election, and as required by CRTC policy regarding Election Campaigns and Political Advertising, Mr. Bratina recused himself from his on-air duties during the respective campaign periods.

In our letter to [the complainant] dated April 24, 2007, we acknowledged that Mr. Bratina may have, on the occasion cited by the complainant, breached Article 6 of the Radio and Television News Directors Association’s Code of Ethics (the “RTNDA Code”).  This said, the question remains as to whether the RTNDA Code in fact applies in this case.  As discussed in greater detail below, the Morning Show is a public affairs program, not a newscast, and as such, we do not believe that it is subject to the RTNDA Code.  As the CBSC has noted, a public affairs show is not constrained by the same need for objectivity as a newscast, and its hosts are entitled to take a point of view on subjects that are controversial, as long as their presentation is fair and balanced.  We believe that the Morning Show has, and continues to meet, this objective.

During his 42 years in broadcasting, Mr. Bratina has prided himself on providing high quality programming to his listeners.  As co-host of the CHML-AM Morning Show, Mr. Bratina has consistently provided programming that is both entertaining and informative to Hamilton-area residents.  Since the Morning Show is more focussed on public affairs than on news, Mr. Bratina routinely comments on topics of local and public interest.  While Mr. Bratina has not shied away from expressing his opinion on a number of local matters, including whether the City of Hamilton should build a fountain in the downtown core or establish a “red light” district, the Morning Show routinely offers points of view from across the political spectrum on a variety of issues.  In the past six months alone, Mr. Bratina and Ms. Thompson have interviewed a number of municipal and provincial politicians, including Marie Bountrogianni, Liberal MPP for Hamilton Mountain, Andrea Horwath, MPP for Hamilton East, and Ontario PC Party Leader, John Tory.  Both Fred Eisenberger and Cam Jackson, mayors of Hamilton and Burlington, respectively, have been guests on the Morning Show on two occasions.  Mr. Bratina and Ms. Thompson have also hosted a Morning Show featuring Terry Whitehead, City of Hamilton councillor for Ward 8.

There is little doubt that the potential for conflict of interest exists in a situation where a broadcaster also holds a political office.  For that reason, the CRTC enacted a policy regarding Election Campaigns and Political Advertising, to which we have wholly complied.  The question here is whether the RTNDA Code should also apply in this kind of situation to mitigate against potential conflict of interest.  Given the nature and format of the Morning Show, we submit that it should not, and therefore, that [the complainant]’s complaint does not raise any issue for the CBSC.

 

THE DECISION

The CBSC Ontario Regional Panel examined the complaint under the following provisions of the Radio Television News Directors – The Association of Electronic Journalists’ (RTNDA) Code of (Journalistic) Ethics and the Canadian Association of Broadcasters’ (CAB) Code of Ethics.

RTNDA Code of (Journalistic) Ethics, Article 6 – Conflict of Interest

Broadcast journalists will govern themselves on and off the job in such a way as to avoid conflict of interest, real or apparent.

CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster.  This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.

The Panel Adjudicators read all of the correspondence and reviewed a recording of the March 19 broadcast.  The Panel concludes that the station did not violate the aforementioned Code provisions.

A Preliminary Matter: The Nature of the Bob Bratina Morning Show

The nature of the Bob Bratina Morning Show is material to Corus Entertainment’s assessment of the applicability of the RTNDA Code of (Journalistic) Ethics.  The Vice President and General Counsel of Corus stated in his letter of October 3 that the Morning Show is a public affairs program.  Were that the case, the program would fall four-square within the ambit of the RTNDA Code.  While the wording of the preamble to that Code was revised in 2000 to reflect new goals of the Association, it should not be forgotten that the preamble to the 1986 version used that very language: “Recognizing the importance to a democracy of an informed public, the members of the RTNDA of Canada believe the broadcasting of factual, accurately-reported and timely news and public affairs is vital. [Emphasis added.]”  The phrase was also, and is currently, used in other articles of the 1986 and 2000 versions of the Code (see, e.g., Article 2 of the 1986 Code and Article 3 of the 2000 Code).  News and public affairs have been and remain, without doubt, the focus of the RTNDA Code.

That being said, the CBSC has not applied the characterization “public affairs” to morning shows or talk radio programs.  It has tended to apply the term to newsmagazine-format programming such as W-Five, J.E. or even the more populist Hard Copy.  The Panel considers that, while talk radio may frequently be oriented towards current issues of public concern, it would not, as a genre, fall into the category of public affairs programming for purposes of the RTNDA Code of (Journalistic) Ethics.  For greater certainty, the Panel generally understands talk radio to be characterized by one or more of the following points of identity: the presence of a host or hosts, who are not merely the introducers of segments, but who take an active role in the discussions of the program; a focus on very current events, whether at a local, provincial, federal or international level; the presence of invited guests with expertise in the area of the topical focus; the occasional or frequent opening of access lines so that audience members can participate in the dialogue.  There are varieties of talk radio, including sports talk and “shock jock” talk.  And the Panel includes the Bob Bratina Morning Show in the category of talk radio for purposes of the present adjudication.

In any event, the Panel does not read the argument in the Corus letter as a wish to exclude the Bob Bratina Morning Show on grounds of its being a “public affairs” program.  It rather understands the letter to be making the point that such programs as Bratina’s are “not constrained by the same need for objectivity as a newscast” and that they are not, for that reason, inexorably bound to the dictates of the RTNDA Code.  The Panel will deal in the next section with the applicability of the Code to such programming.

The Applicability Of The Rtnda Code To A Non-journalisticprogram

On its face, the RTNDA Code applies to broadcast journalism.  There is no content in the Code itself that would appear to extend its ambit to other non-journalistic programming.  That this issue arises at all is due to the correspondence in the matter at hand.  The point flows from the broadcaster’s correspondence sent to the complainant, in the first case, and to the CBSC, in the second.

In the station’s initial letter, the General Manager acknowledged that Mr. Bratina “failed to adhere to the [Conflict of Interest] Article [of the RTNDA Code of (Journalistic) Ethics].”  In the second letter, the representative of CHML’s parent company, Corus Entertainment, softened the language relating to the “failure” to adhere, saying “may have breached [emphasis added]” Article 6, but adding that they did not believe that the program in question, not being in the strictest sense a news program, was even “subject to the RTNDA Code.”

As to the issue of whether CHML did or did not breach the conflict of interest codified standard, the Panel will have more to say below.  It does wish, though, at this point, to observe that that determination is the Panel’s to make.  While it fully appreciates the genuineness and the collaborative nature of CHML’s acknowledgment, it is at the end of the day the Panel’s responsibility to ensure the consistency of the CBSC’s jurisprudence and, in that sense, the strict determination of whether there has been a breach of Article 6 will be decided by the Panel.

Further to the point made by Corus regarding the applicability of the RTNDA Code of (Journalistic) Ethics to a program such as the Bob Bratina Morning Show, the Panel wishes to clarify the issue of the application of its codes to occasional unanticipated circumstances.  Put in other words, even when it is technically the case that a given Code, in terms, refers only to a specified category of programming, the CBSC generally considers that the codified standards it administers ought to be of analogous, hence broader, application.

Thus, when the Quebec Regional Panel was faced years ago, in TQS re the movie L’inconnu (CBSC Decision 98/99-0176, June 23, 1999), with the applicability of the television Watershed established in the CAB Violence Code to mature programming that was not of a violent nature, it adopted the position that it was appropriate, correct and beneficial to both broadcasters and the public that that principle be understood as extending to television programming including sexual, that is non-violent, content.  Indeed, since that time, the various CBSC Panels have adopted the principle that the Watershed provision of the CAB Violence Code covers all television content intended exclusively for adults.  (Several years later, that principle was enshrined in the CAB Code of Ethics when it was amended in 2002.)

Similarly, when, on another occasion, in CIOX-FM re a song entitled “Boyz in the Hood” (CBSC Decision 00/99-0619, October 12, 2000), there was a question of whether the provisions prohibiting inappropriate violent content directed against women on television could be extended to the prohibition of such content on radio, this Panel considered it appropriate to do so.  It explained:

While it is clear that the prohibition against sanctioning, promoting or glamorizing any aspect of violence against women is found in the Code dealing with violence on television, the Council does not assume that Canada’s private broadcasters had intended their strong and unequivocal prohibition of such aggressively anti-woman behaviour to extend no further than the television screen.  The Council considers that, while the Violence Code was created to deal with a series of content issues far likelier to be present in that medium than in the different style of programming in the radio sphere, the broadcasters did not believe that the prohibitory principle ought not to benefit women across the broadcast spectrum.

In a matter closer to that under consideration here, namely, CFTM-TV (TVA) re Tôt ou tard (CBSC Decision 00/01-1080, April 5, 2002), the Quebec Regional Panel was faced with a comedic sketch in which an “intrepid reporter” was interviewing couples in their cars at a movie drive-in.  A willing couple had had a change of heart concerning their role in the sketch, and took steps to ensure that their interview would not appear.  It did.  The Quebec Panel decided against the broadcaster under Clause 6(3) of the CAB Code of Ethics (now Clause 6 under the revised Code), but with the full application of the privacy provision of the RTNDA Code.  The Panel said that the broadcaster’s

failure to respect the complainants’ privacy constitutes a breach of the privacy principle exemplified in the RTNDA Code of (Journalistic) Ethics and constitutes an unfair and improper comment under the CAB Code of Ethics.

See also, on this point, CIQC-AM re Galganov in the Morning (Invasion of Privacy) (CBSC Decision 97/98-0509, August 14, 1998), TQS re Gilles Proulx comments on Journal du midi (transportation strike) (CBSC Decision 03/04-0334, April 22, 2004), and CJMS-AM re comments on two episodes of Le p’tit monde à Frenchie (CBSC Decision 04/05-0939, October 24, 2005).

Applying the foregoing principles to the matter at hand, the Panel recognizes that the format of the Bob Bratina Morning Show is not, strictly speaking, anticipated by the RTNDA Code.  Nonetheless, the Panel considers that some provisions of that journalistic Code might, in principle, be extended to apply to a talk show by analogy.  It appears to the Panel that, in addition to the principle contained in Article 4 (as noted in the preceding paragraph), those established in Article 6, as well as Articles 3, 9 and 10 (as examples), could be applied more broadly than in a strict news and public affairs environment.

It is the view of the Panel that the point raised in the Corus letter to the effect that Article 6 could not apply to a program of this nature is incorrect, although the Panel does agree that a talk show is not expected to be objective.  The consequence of this conclusion is that the subjective position taken by host Bob Bratina is not, on account of its non-objectivity, in breach of Clause 6 of the CAB Code of Ethics.  The question of whether it is in breach of Article 6 of the RTNDA Code of (Journalistic) Ethics will be treated in the following section.

Is a Political Officeholder Necessarily in a Conflict of Interest?

The complainant had clearly been troubled by what she described as the “very ambiguous roles” of the radio host as a broadcaster and a politician.  On the morning in question, she was riled by what she described as the “appalling” comments cited above.  She elaborated on her position in part by saying, “Whether one agrees or disagrees with him, using the morning show to showcase his political activities and viewpoint is not only irritating and annoying.  It is also downright inappropriate to use his time slot on air as a personal forum.”  She added in the letter to the broadcaster that she was “surprised that this mixture of morning man/politician is something that your corporation allows and supports.”

The Panel understands the complainant’s perspective and appreciates that some broadcasters might not permit the mixture of the two roles.  Others would.  Unless there is a codified (or legislated) standard that would prohibit such a mixing of roles, that would be a policy choice that all broadcasters would be free to make.  The issue for the Ontario Regional Panel is to determine whether such a standard exists.

To a considerable extent, the underlying principles are those found in the CRTC’s information sheet on “Election Campaigns and Political Advertising”, which begins with the principle that “[d]uring an election campaign, the public has a right to know about all the issues involved so that it has sufficient knowledge to make an informed choice from among the various political parties and candidates.”  The goal is knowledge-centred information.  That principle is extended by requiring that, during a campaign, broadcasters “must provide equitable treatment of issues, candidates and parties.”  “Equitable” is then defined by the CRTC as meaning “that all candidates and parties are entitled to some coverage that will give them the opportunity to expose their ideas to the public. Although treatment must be fair and just, ‘equitable’ does not necessarily mean ‘equal’.”  The CRTC’s information sheet, under the heading “News Coverage and Public Affairs”, more precisely provides that, during election campaigns, broadcasters must “ensure that audiences are informed of the main issues and positions of all candidates and registered parties on those issues.”

The point of the foregoing references is that the Commission’s primordial goal appears to be the assurance that, during election campaigns, audiences will be informed.  The CRTC expects that, on the basis of coverage, audiences will be in a better position to make informed choices on the issues, candidates and parties.  And the treatment of these must be equitable, without necessarily being equal.  Moreover, this compendium of principles is intended to ensure that, during election campaigns, the elaborated principles will be implemented and observed.  The implication of the timing of the group of principles is that, when no election campaigns are before the populace, the flexibility of the rules is even greater.  This is not to suggest that there are no rules, but only that the customary principles of balance in overall programming and respect for the full, fair and proper presentation of news, opinion, comment and editorial apply.

All of the general principles discussed above are supplemented by the CRTC’s anticipation of the problem facing the Panel in the present instance.  What further restrictions may be seen to exist when a candidate is an on-air personality or, presumably, vice versa?  The information sheet on “Election Campaigns and Political Advertising” deals with that point in the following terms:

On-Air Personalities as Candidates

It seems clear to the Panel that candidates must cease their on-air exposure during any election campaign or from the date of announcement of their candidacy, whichever is later.  The underlying implication is evidently that no fundamental conflict exists between being a candidate and being on the airwaves, even when the announcement of one’s candidacy occurs, say, two months before an election is called.  In other words, the issue appears to relate to the unfair advantage that may accrue to an on-air individual in the midst of an election contest.  Provided one is outside that period, no necessary incompatibility is seen to ensue.

This does not mean that the Panel considers that absolutely anything could be said at any time by a candidate or an office-holder.  It only means that the Panel does not consider that there is anything inherently incompatible between the holding or seeking of office by an individual, on the one hand, and being on air, on the other.

As a point of comparative interest, there is a similar provision found in the (British) Ofcom Broadcasting Code in Section 6.6, which reads

Candidates in UK elections, and representatives of permitted participants in UK referendums, must not act as news presenters, interviewers or presenters of any type of programme during the election period.

There is only one other provision in the British Code that refers to any broadcasting restrictions placed upon politicians.  Section 5.3 of that Code reads:

No politician may be used as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience.

In the United States, there is no comparable restriction under the Federal Communications Commission (FCC) rules, except during election campaigns, and then the issue relates to the furnishing of equal time or equal opportunities for other candidates seeking the same position.  There is otherwise no restriction upon a political officeholder’s access to the airwaves as an on-air host.

The Ontario Panel appreciates that some Canadian broadcasters will prefer not to confer such an access advantage on an individual at any time, even when there is no political campaign in contemplation.  That, needless to say, is their choice. The bottom line for the Ontario Regional Panel is that, in Canada, provided one is outside the period of an electoral contest, there is no necessary incompatibility between an individual’s holding political office and having a regular on-air role.

Bob Bratina’s Comments: Unfair or Conflicted?

The Panel is only in a position to assess the comments made by Bob Bratina during the broadcast of March 19.  Consequently, it cannot determine whether the host regularly “us[es] the morning show to showcase his political activities and viewpoint,” as the complainant alleges.  It can, however, conclude that, to the extent that the episode of March 19 is the worst that the complainant can identify, there is no Code-related problem with the program.  The Panel does not agree that a talk show host cannot use his or her program to showcase his or her viewpoint or, as the complainant added, “to use his [or, generically, her] time slot on the air as a personal forum.”  That is the essence of commercial talk radio.  In CKTB-AM re the John Michael Show (Middle East Commentary) (CBSC Decision 01/02-0651, June 7, 2002), for example, this Panel explained that there are generally two types of talk shows: those where the host is an active participant and those where the host acts as more of a moderator in the discussion.  The distinction was drawn in the following terms:

Public radio may be said to aim more at the provision of information while private radio’s talk shows are intended to be livelier and more provocative.  To accomplish this goal, the latter are not likely to feature a host without a point of view.  The constant central figure does not simply play the role of referee, gingerly guiding the callers around the electronic forum into which they have stepped.  The verb which is the root of the French word for host, “animer”, gives a far better sense of the role of such a talk radio host.  It is to breathe life into, to communicate ardour, energy, enthusiasm, excitement, passion, to lead, to inspire.

In other words, private talk radio hosts are expected to have a viewpoint and to, in that sense, use their shows as something of “a personal forum”.  The Panel finds nothing in the host’s commentary in response to the Hamilton Spectator article to be problematic or over-the-top, although it unquestionably has a perspective (more of this in the following section).  There is no breach of Clause 6 of the CAB Code of Ethics on this account.

To be entirely fair to the complainant, it appears that her greater concern was the mixing of the political and broadcast roles.  Here, too, the Panel finds no difficulty.  There is nothing overtly political in the commentary, as in a “Vote for me” exhortation.  There is, as noted in the preceding paragraph, a host point of view on the issue of adult entertainment parlours.  It may even be said to reflect a perspective that flows from the elected responsibility that the host exercises.  Perhaps there is even a subtle reach in any of the host’s comments, on this date or any other, to support him in due course, if you agree with his policies.  To the extent that the host practises his on-air profession away from election campaign periods, however, there is no inherent difficulty or conflict of interest resulting from his municipal position.  It should be borne in mind that this decision is rendered on the basis of the challenged broadcast; it does not necessarily respond to absolutely any comment that may be made by an on-air politician.  Whether, for example, there might be a difference between the advocacy of an issue about to come before City Council and one describing the consequences of Council deliberations after the fact has neither been raised nor considered in the present decision.  There may not be a material distinction to be drawn between two such situations.  That will, however, be left to another Panel to determine should the facts require such an assessment.

Fundamentally, this Panel is determining that the access, even the advantage, that the politician-host undeniably has is not inherently undue (during a non-campaign period).  Moreover, where the political status of the speaker is known to the audience, the listeners are not in any way deceived.  Indeed, it is arguable that audiences having the opportunity to benefit from the knowledge and experience of an individual in office secure an information advantage.  As noted immediately above, there may be a distinction to be drawn between a politician-host who is aggressively pushing his or her own agenda and one who is helpfully informing an audience.  The CBSC response to the former situation must await a more relevant set of challenged facts.

The bottom line in the matter at hand is that, given the partisan ardour that CBSC Panels regularly encounter in talk show hosts who have no elected seat, the relatively downplayed perspective of Bob Bratina in the challenged program presents this Panel with no difficulty.  It finds no breach of Article 6 of the RTNDA Code.

The Criticism of the Newspaper

The Panel has little to say about the complainant’s strongly worded characterization of Bratina’s “attack” on the local newspaper story, “because she [the reporter] hadn’t written the story the way he wanted it.”  The Hamilton Spectator had, after all, edited, titled and published the story, which they had every right to do, and, in the best free speech tradition, the subject of the story responded, which he had every corresponding right to do.  The Panel has no way of, or interest in, assessing which point of view, if either, may have been correct.  The Bob Bratina reaction was, simply, a reasonable, temperate, fair reaction to the reporter’s story, a case where he felt entitled to explain how his view on the red light district had been misrepresented.  It was not an attack.  It expressed a disagreement.  It did not contain a smidgeon of an insult, much less a wisp of an unfair or improper comment or opinion.  All fair game.  Moreover, the host did not even name the newspaper, let alone the reporter; it is difficult for the Panel to conceive that the host’s comments were other than fair and proper.

Broadcaster Responsiveness

In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant.  In the present instance, the Panel finds that the two responses of CHML’s General Manager were, in this regard, thoughtful and responsive.  While the first response was brief, the second focussed on the precise elements of the complaint and dealt with them in a helpful manner.  Although it was not a satisfactory reply from the complainant’s perspective, the broadcaster is never under any obligation to agree with the complainant.  Not only is there no fault in the difference of perspectives, it is the case that every matter that goes to a Panel for adjudication begins with just such a disagreement between the complainant and the broadcaster.  The Panel considers that CHML has fully met its CBSC membership responsiveness responsibilities.  The Panel also wishes to note the additional letter from Corus Entertainment’s Vice President and General Counsel.  Although it only represented additional clarifications related to the challenged programming sent to the CBSC and not to the complainant, it is a part of the correspondence and reflective of the broadcaster’s parent company’s concerns.

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, where, as in the present case, the decision is favourable, the station is under no obligation to announce the result.