CHOM-FM re Howard Stern Show

QUEBEC REGIONAL COUNCIL
(CBSC Decision 97/98-0001+)
P. Audet (Chair), Y. Chouinard, M. Gervais, S. Gouin and P. Tancred

The Facts

The Howard Stern Show is produced at WXRK-FM in New York City each
non-holiday weekday morning. (It has originated there since September 1985
and in its morning time slot since February 1986.) It begins at approximately
6:00 a.m. and, in principle, finishes at 10:00 a.m., although the ending time of
the show is not fixed; in the time period dealt with in this decision, the show
generally ran 60-90 minutes beyond the 10:00 a.m. projected ending.

On Tuesday, September 2, 1997, the show was syndicated in Canada for the
first time. Two Canadian stations, CHOM-FM in Montreal and CILQ-FM in
Toronto, began to broadcast the show on that date. During the course of that
initial episode, the host made many comments about which listeners to the
stations immediately objected. The initial complaints received by the CBSC
were followed by complaints signed by over 1,000 individuals to date in
relation to the episode of September 2 and other specific dates in the first two
weeks, as well as the Howard Stern Show generally for the period. The
substance of those episodes which required CBSC review will be described
below. There were also letters of support for the show received directly and indirectly by the CBSC.

Before dealing with the substance of the complaints, there are some
preliminary matters with which to deal.

Procedural Questions

As a result of that initial episode, complaints began flowing in to the Canadian
Broadcast Standards Council (“CBSC”) and the Canadian Radio-television
and Telecommunications Commission (“CRTC”) by e-mail, fax and letter from
the very first day, namely, September 2. In due course, all Code-related
complaints directed initially to the CRTC were forwarded to the CBSC. In the
normal course of events and in accordance with standard CBSC practice,
these complaints were forwarded to the two broadcasters, whose General
Managers sent letters to each complainant individually, each station
explaining its position regarding the complaints which had been made.

Due to the great quantity of complaints, the chain of events which began with
responses from the CRTC and the CBSC to complainants and continued with
the remittance of those letters to the broadcaster and the broadcasters'
responses, occurred over an extended period of time. Moreover, complaints
about the Howard Stern Show as a whole, as well as numerous other
individual episodes, during and following the first two weeks, have continued
to arrive, all of which has resulted in the return to the CBSC of Ruling
Requests on a staggered basis. As of the date of the meetings of the Quebec
and Ontario Regional Councils, and continuously thereafter, Ruling Requests
were still reaching the CBSC's offices and it is the CBSC's expectation that
they will continue to arrive after this decision. Since only one Ruling Request
is sufficient to trigger the adjudication process, that process was undertaken
before all Ruling Requests related to the numerous complaints had been
returned.

The Quebec and Ontario Regional Councils consider that the complaints
covering the episodes for the first two-week period can be considered
together. In fact, for reasons which will be discussed at greater length below,
the Councils are of the view that, while the subject matter of the daily Howard
Stern Show episodes of course varies from day to day, the presentation of the
content which is the principal subject matter of this decision remains
systematically similar in approach from one day to the next. As in the case of
CIII-TV re Mighty Morphin Power Rangers (CBSC Decision 93/94-0270 and
0277, October 24, 1994), the two weeks of episodes reviewed will be a fair
reflection of the type of approach and attitude which the show could be
expected to reflect on an ongoing basis. In the Power Rangers case, the
Ontario Regional Council concluded

that their observations entitle them to take the generalized
position that the approach of the entire series is such that it
would likely be in breach of those articles of the Violence Code
in the same manner as the episodes which the Council members
viewed in order to render this decision.

The Quebec and Ontario Regional Councils consider that those remarks apply
by analogy, with respect to the Code of Ethics and the Sex-Role Portrayal
Code
, to the Howard Stern Show.

It should be noted that the vast majority of the listeners' opening episode
complaints related to Stern's comments on the French and French-Canadians.
Some related to other issues and those arising from later episodes within the
opening two-week period did not deal with the French/French-Canadian
question. It is significant to the two Regional Councils that the complaints
which focussed on that initial issue were almost as often sent by Anglophones
as Francophones. The Regional Councils will have more to say about this
phenomenon below.

Since, in the vast majority of cases, it was possible to attribute the complaints
to CHOM-FM and CILQ-FM separately, the CBSC scheduled two separate
Regional Council meetings. That of the Quebec Council took place in
Montreal on October 17 and that of the Ontario Council took place in Toronto
on October 18, 1997. Although the possibility that the two Regional Councils
meet together had initially been contemplated, it was ultimately decided that
their deliberations should occur separately. It was also decided by the
Ontario Regional Council that its members would not be informed of the
course of the discussion or the results of the Quebec Regional Council's
deliberations of the previous day until after they had come to their own
conclusions.

While the components of the two Regional Council debates differed to some
extent, the conclusions of the two Regional Councils regarding the essential
issues dealt with herein were identical and, in the end, the text of this decision
was reviewed and concurred in by the two Regional Councils. It was agreed
by both the Quebec and the Ontario Councils that each could subscribe fully
to the reasons and the conclusions of this decision text and that,
consequently, the decision should be issued jointly by both the Quebec and
the Ontario Regional Councils.

A Jurisdictional Issue

Many complaints relating to the Howard Stern Show raised only the question
of the nationality of the originating program's host. Others dealt with both the
substance of the show and Stern's nationality. Those complaints which fell
into the former category were retained by the CRTC to be dealt with pursuant,
the Regional Councils assume, to the CRTC's mandate relating to the
determination of the “Broadcasting Policy for Canada” under Section 3 of the
Broadcasting Act, as well as such other statutes, regulations and policies as
the Commission might consider relevant. Sections 3(1)(d), (e) and (f) of the
Act provide:

(d) the Canadian broadcasting system should

(i) serve to safeguard, enrich and strengthen the
cultural, political, social and economic fabric of
Canada,

(ii) encourage the development of Canadian
expression by providing a wide range of
programming that reflects Canadian attitudes,
opinions, ideas, values and artistic creativity, by
displaying Canadian talent in entertainment
programming and by offering information and
analysis concerning Canada and other countries
from a Canadian point of view,

(iii) through its programming and the employment
opportunities arising out of its operations, serve the
needs and interests, and reflect the circumstances
and aspirations, of Canadian men, women and
children, including equal rights, the linguistic duality
and multicultural and multiracial nature of Canadian
society and the special place of aboriginal peoples
within that society, and

(iv) be readily adaptable to scientific and
technological change;

(e) each element of the Canadian broadcasting system shall
contribute in an appropriate manner to the creation and
presentation of Canadian programming;

(f) each broadcasting undertaking shall make maximum use, and
in no case less than predominant use, of Canadian creative and
other resources in the creation and presentation of programming,
unless the nature of the service provided by the undertaking,
such as specialized content or format or the use of languages
other than French and English, renders that use impracticable, in
which case the undertaking shall make the greatest practicable
use of those resources.

Among other things, the Regional Councils are also aware of the forthcoming
Review of the Commission's Policies for Commercial Radio (Public Notice
CRTC 1997-104) and, from the text of the letters to complainants originating
in the Correspondence and Complaints Division of the CRTC, expect that the
issue of nationality may be treated there: “In early December, the Commission
will hold a public hearing to review all of its policies concerning commercial
radio and this could provide an opportunity to review the importation and
means of distribution of foreign-produced programming on Canadian radio
stations.” In a recent address to the Canadian Association of Broadcasters
Annual Convention, Françoise Bertrand, Chairperson of the CRTC said: “But
radio issues go beyond technology. On the content side, is there a reason for
the Commission to be concerned about talk radio? Are we witnessing an
increased reliance on imported US product instead of developing Canadian
programming? Does this mean we will see increasing Americanization of
Canadian radio, both in terms of air time and values?” Whether the issue of
nationality is or is not treated in that forum is ultimately not a matter of
moment to the CBSC, which does not itself have jurisdiction to deal with the
issue. Consequently, even with respect to those complaints which the
Regional Councils retained by reason of their substantive content but which
also raised the issue of non-Canadian content, the CBSC has restricted its
examination of matters arising therefrom to Code-related issues.

Presentation of Excerpts from the Howard Stern Shows

Customarily, CBSC decisions begin with excerpts of the program in question
and follow it with excerpts from the complaint and the response of the
broadcaster. This is hardly practical in a case which has generated as many
complaints as the Howard Stern Show. Due to the length of the show, the
number of individual Stern programs complained of, and the number of Code-related issues raised, it is also impractical to include lengthy excerpts of the
various episodes in the body of the decision. Accordingly, the CBSC will
divide the decision by issue and include brief portions of the programs which
are illustrative of the problems dealt with in each area. Lengthier excerpts will
be annexed to this decision as appendices A through D. The CBSC's decision
on each issue will be discussed on a separate basis under each heading.

Presentation of Complainants' Letters

What is true of the content of the Stern episodes is equally true of the
complaints, which would constitute hundreds of pages of text. In the
circumstances, the CBSC has decided to include brief excerpts from a certain
number of the complaints divided by issue as Appendix E and fuller texts of
another group of complaints as Appendix F. The Regional Councils have also
decided to present these complaints in their language of submission in both
the French and English versions of this decision.

The Broadcasters' Responses

Since, by and large, the broadcasters responded to the complainants in terms
which could be described as substantially similar, although prepared
individually in each case, it is a simpler matter to include relevant paragraphs
from their letters in the body of this decision. Accordingly, those portions from
the CHOM-FM and CILQ-FM letters are quoted here. It should be noted that
the broadcasters' responses modified slightly over time and, in the Council's
view, it is fairer to provide a reflection of that evolution, even though some of
these modified texts may have been used between the dates of the Regional
Council meetings and the date of this decision.

The essence of the CHOM-FM responses was as follows:

Like you, we at CHOM-FM were concerned by certain uninformed remarks
made on September 2nd by Howard Stern relating to francophones. We
know that those remarks were perceived to be offensive and insulting to a
large segment of our audience and to Canadians as a whole.

We should stress that the unfortunate remarks made by Mr. Stern on
September 2nd do not reflect the views or opinions of the management or
personnel of CHOM-FM or of its parent company, CHUM Limited.

While the overall objective of The Howard Stern Show is to amuse and
entertain through comedy, this is sometimes done through comments which
some may find shocking or outrageous. Such comments are, of course,
intended to be humourous, and are in no way intended as serious
commentary on social or political issues.

CHOM-FM's decision to broadcast The Howard Stern Show was made in
the context of the existing Montreal radio environment. Fortunately,
contrary to other outspoken radio hosts in Montreal, Howard Stern means
to be humourous. Many Montreal radio listeners find his particular
approach to humour amusing and entertaining and acceptable to their
tastes. Early audience surveys confirm this and reflect his position as an
established North American entertainment star. The Howard Stern Show
was added to the CHOM-FM schedule with the knowledge that Montreal
listeners who are not amused or entertained by such radio programs, have
many other listening options. CHOM-FM regularly airs listener advisories
informing its audience that some listeners may find the material in the
program offensive.

The revised version of the letter included the following text:

We note your strong objection to The Howard Stern Show is based
primarily on the fact that it contains language and statements which you
and others find offensive.

When we took the decision to schedule the syndicated Howard Stern Show
on CHOM-FM, we realized that it would contain material of a controversial
nature. Moreover, we were aware that some aspects of the show would
contain language and themes suited for mature audiences. For that
reason, CHOM-FM regularly airs listener advisories informing its audience
that some listeners may find the material in the program offensive, and that
they may, therefore, wish to tune to another station.

The overall objective of The Howard Stern Show is to amuse and entertain.
However, the particular brand of comedy contained in that program
admittedly sometimes includes comments which some may find shocking
or outrageous. Such comments are, of course, intended to be humourous,
and are not in any way intended as serious commentary on social or
political issues.

The initial CILQ-FM response letter included the following text:

We do recognize that the Stern Show is not for everyone's taste and we
both respect and understand every individual's choice not to listen to the
programme.

Howard Stern has made it clear on a number of occasions that he is a
comedian and entertainer by trade and reputation. He has also made it
clear that his material should not be treated as the social or political
commentary of a politician or journalist. He is not a news/trained journalist
or talk host dealing with the issues of the day in a traditional open line style
of talk programming. Indeed he has never held himself out to be one and
is well known to the public as a performer, not a serious commentator. He
clarified the nature of his comments on two separate occasions. The first
was on September 4th when a news reporter from Quatre Saisons
Television in Montreal called into the programme and questioned Howard
and the second was on the 10th of September when it was raised in the
Toronto news conference by the Global Television reporter covering the
event. He said “I'm always amazed how people want to take me
seriously…I'm a disc jockey…I'm joking…explain it to everyone.”

Howard Stern's humour is of the Lenny Bruce, Don Rickles, Sam Kinison
style and although it may be deemed to be in bad taste by some, his
comments are not motivated by personal animosity or racism. We believe
his style of satire, like Norman Lear's “All in the Family”, is principally a
parody of those people in society who really do hold intolerant views.

We have taken steps to ensure that warnings about the nature and adult
content of the show are broadcast at least twice each hour and in other
dayparts whenever the programme is being promoted in an effort to inform
the listeners who may be sensitive to such issues.

Some of the CILQ-FM letters used the following language in responding to the
specific complaints about the French and French-Canadian comments:

Comments regarding language used in the Stern show from time to time
are being evaluated against the standards that are acceptable within our
listening community. …

Stern's comments about the French should be seen in this light. He has
stated on several occasions that the comments are based on his view of
the actions taken by some French citizens and government officials in
France during the second world war. He has explicitly denied any
animosity toward the population of Quebec.

We monitor the response and attitude of our audiences very closely and
continually assess what we need to provide to satisfy their listening needs.
Ultimately, our actions are determined by the response within the listening
community.

The subsequent CILQ-FM text included the following paragraphs:

We do recognize that the Stern Show is not for everyone's taste and we
both respect and understand every individual's choice not to listen to the
programme.

Your letter did not reference a specific example of Stern's use of crude
language which makes it difficult for us to respond to that part of your letter.
We can say that we believe he uses language that is common vernacular
in our society. Often, what is offensive to some is not perceived that way
by others. We have taken steps to ensure that warnings about the nature
and adult content of the show are broadcast at least twice each hour during
the program and in other dayparts whenever the program is being
promoted, in an effort to inform listeners who may be sensitive to such
issues.

Having said that, we understand that not everyone appreciates Stern's
brand of entertainment and we regret that you found his comments to be
offensive. Howard Stern is a satirist whose comments on societal issues
are meant to parody those people in society who really do hold intolerant
views. Input such as yours, as well as editorial comment from other media
has been given to Stern to apprise him of the different sensitivities that may
exist within Canadian audiences.

A Preliminary Word on the Listener Advisories

Both broadcasters noted that they had used listener advisories. Regardless
of the CBSC's views on the appropriateness of the Howard Stern Show in the
light of the Codes (dealt with in detail below), the Regional Councils applaud
the broadcasters for ensuring that listeners are constantly alerted to the nature
of the Howard Stern Show. Moreover, the broadcasters have not been
reluctant to use material critical of Stern in those advisories and this is to their
credit. The CBSC must, however, underscore the fact that the use of
advisories never relieves broadcasters of their responsibility to adhere to the
standards in the Codes. Ultimately, of course, the issue is the content of the
episodes which must be measured against the Codes. Nonetheless, the
provision of such information in the case of potentially controversial radio, as
much as in television, is absolutely essential to inform the medium's audience.

Canadian and American Approaches to Broadcast Speech

Before delving into the specific issues raised by the initial episodes, it seems
appropriate to deal with certain themes which will be common to the CBSC's
treatment of all issues raised by the Howard Stern Show.

The CBSC considers it appropriate to draw certain distinctions between
Canadian and American approaches to the free speech issue which might
result in the non-acceptability of a broadcast in one country and the
acceptability of the same program in the other. In broadest terms, the texts
of the First Amendment in the American Bill of Rights and the first and second
sections of the Canadian Charter of Rights and Freedoms are materially
different. The American approach is far more sweeping. It provides that

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.

In Canada, freedom of expression is nowhere declared to be as absolute. In
the Canadian Charter of Rights and Freedoms, Section 2(b), which declares
the existence of the fundamental freedoms “of thought, belief, opinion and
expression, including freedom of the press and other media of
communication”, is expressly declared to be subject to the limitation imposed
in Section 1, which declares:

The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a
free and democratic society.

Thereafter, neither the American Communications Act of 1934 nor the recent
Telecommunications Act of 1996 contains any provisions which purport to
restrict freedom of speech whereas the Canadian Broadcasting Act and the
regulations created under it do. The logic of those restrictions begins with the
principle enunciated in Section 3(1)(b) of the Canadian law, which states that
“the Canadian broadcasting system, operating primarily in the English and
French languages and comprising public, private and community elements,
makes use of radio frequencies that are public property …” [Emphasis added.]
It follows that the CRTC, as the body administering the Act, the Regulations
and the licences granted under those instruments, could be expected to
impose standards which would have the effect of restricting access to those
licences by imposing both positive and negative proscriptions. One of the
most fundamental positive requirements is that “the programming originated
by broadcasting undertakings should be of high standard”. There are also
negative restraints, one of which, Section 3 of the Radio Regulations, 1986,
clearly restricts untrammelled freedom of expression, is relevant to the matter
at hand. It provides that:

A licensee shall not broadcast

(a) anything in contravention of the law;

(b) any abusive comment that, when taken in context, tends or
is likely to expose an individual or a group or class of individuals
to hatred or contempt on the basis of race, national or ethnic
origin, colour, religion, sex, sexual orientation, age or mental or
physical disability;

(c) any obscene or profane language;

(d) any false or misleading news;

Furthermore, all Canadian broadcast licencees know perfectly well that there
are public rules in Canada to which broadcasters must adhere as well as
others to which private broadcasters have chosen to adhere. In this latter
category fall the Canadian Association of Broadcasters Codes, of which there
is no equivalent in the United States. These are, however, viewed by
Parliament and the CRTC as a necessary and integral component to our
broadcasting system. As the CRTC said in its opening words to the Public
Notice approving the creation of the Canadian Broadcast Standards Council
(PN CRTC 1991-90),

The purpose of this public notice is to advise licensees and the
public that the Commission fully supports the objective of the
Canadian Broadcast Standards Council (the CBSC), which is to
encourage high standards of professional conduct on the part of
private radio and television broadcasters by ensuring that social
concerns and values are reflected in their programming
decisions. The Council administers specific codes of broadcast
conduct and provides a means of recourse for members of the
public regarding the application of these standards.

Among its conclusions in that Public Notice, the Commission stated:

The Commission is confident that CBSC member stations will not
only fulfill the commitments they have formally agreed to uphold
as a requirement of membership, but also that they will
demonstrate, in all aspects of their programming, their dedication
to the objective of improving program quality and their
willingness to accept a greater degree of responsibility for
responding to social issues and community values.

The Commission has subsequently indicated its willingness to entrust the
CBSC with greater responsibility and, in this regard, with those further
cautiously created limitations on freedom of expression which necessarily
accompany any imposition of standards. Thus, in recognizing the private
broadcasters' Voluntary Code on Violence in Television Programming, the
Commission stated its confidence that that Code “achieves the appropriate
balance between preserving freedom of expression and protecting the viewing
public, especially children, from the harmful effects of television violence.”
(PN CRTC 1993-149)

The CBSC has frequently observed that freedom of expression is the basic
rule which it applies in the rendering of its decisions but it believes that this
principle is not absolute. It is and must be subject to those values which, in
a free and democratic society, entitle all members of society, on the one hand,
to speak freely while, on the other hand, remaining free from the abrogation
of those other values in which they and other Canadians believe. Free speech
without responsibility is not liberty; it is licence. The freedom to swing one's
arm ends where it makes contact with one's neighbour's nose. The length of
that arc is what the CBSC must determine from case to case.

It must also be recognized that the scope of freedom of expression will be
greater in a private or even limited public environment than it will be on the
airwaves. As noted above, the airwaves are public property. They are also
a scarce resource and available only to those who will exercise their
broadcast entitlement by the rules. Access to a broadcast licence is a
privilege, not a right. As the Quebec Regional Council observed in CFJP-TV (TQS) re “Quand l'amour est gai” (CBSC Decision 94/95-0204, December 6,
1995),

The Canadian Broadcast Standards Council has, on numerous
occasions, confirmed its attitude regarding the principle of
freedom of expression. It is hardly necessary to restate the
importance of this principle to a democratic society; however, it
may be useful for Canadians to remind themselves from time to
time of the critical role played by radio and television
broadcasters in the exercise of this freedom. After all, while the
purity of the principle remains the same in small or large groups,
the freedom to express cannot be as pervasive or influential
exercised in a kaffeeklatsch or a street corner as across the
public airwaves.

As it happens, among the limited restrictions on free speech in the American
broadcast context are the indecency provisions contained in the American
criminal law, which prohibits the uttering of “any obscene, indecent, or profane
language by means of radio communication.” Even in the more absolute free
speech environment of the United States, the Howard Stern Show has fallen
afoul of those obscenity provisions. On September 1, 1995, the FCC
approved a $1,715,000 (Cdn$2,400,000) settlement agreement with Infinity
Broadcasting Corporation resolving several pending indecency enforcement
proceedings against Infinity broadcast stations (in New York, Pennsylvania
and Virginia). As FCC Chairman Reed Hundt stated, “A core mission of this
agency is to give parents the tools to shield their children from indecent and
violent broadcast programming. … The settlement … represents the largest
amount ever contributed to the U.S. Treasury by a broadcast station licensee.”
More recently, the FCC has issued further Notices of Apparent Liability on
October 15, 1996 and April 8, 1997 against Virginia and Louisiana radio
stations with respect to subsequent episodes of the Howard Stern Show.

These American proceedings have been instituted in a social context far more
tolerant of free speech. As noted above, the Canadian approach to broadcast
speech is far more cautious and reflective of the need to respect other
Canadian values.

The Regional Council members listened to the tapes or reviewed the
transcripts of the following September programs (September 2-5, Monday,
September 1, having been Labour Day, and September 8-12) and reviewed
all of the correspondence relating to complaints for which Ruling Requests
had been received by their respective meeting dates, as well as a significant
sampling of support letters and other complaints for which there had been
insufficient time to generate Ruling Requests as of the time of the meetings.

The various programs of the first two weeks of the Howard Stern Show give
rise to numerous issues which return with regularity. With respect to many of
these, as will be noted below, the Councils consider that the broadcasters
have breached one or more of the Codes. With respect to certain others, the
Councils do not consider that there has been any breach. Their reasons are
discussed under each heading.

1. Bad Taste

Many of the complaints received regarding the Howard Stern Show related to
questions of taste. Stern was accused of being offensive, vulgar, adolescent,
rude, unsuitable, outrageous, sick, tasteless and so on. (A sampling of
complaint letters is provided in Appendix E below.) The Quebec and Ontario
Regional Councils are, however, agreed that, under the present Codes,
matters of taste must be left to be regulated by the marketplace. Such
choices remain those of the listener. This is the time when the on/off switch
is the listener's coping mechanism. Unless comments made by a broadcaster
are of a nature to breach provisions of one or more of the Codes, the CBSC
will not judge them one way or the other.

Consequently, the Quebec and Ontario Regional Councils do not find that the
broadcast of material which may, in their view, as well as that of many
complainants, be in bad taste, is in breach of any of the Codes which the
CBSC administers.

When, however, the comments cross the line into the territory covered by the
Broadcasting Act, the Radio Regulations, 1986, or the various private
broadcasters' Codes, the on/off switch is no longer the solution in Canada.
Those laws, rules and standards have been established to ensure that, in its
broadest terms, “the Canadian broadcasting system should serve to
safeguard, enrich and strengthen the cultural, political, social and economic
fabric of Canada” and that “the programming originated by broadcasting
undertakings should be of high standard.” The general standards
administered by the CRTC, as well as the codified principles administered by
the CBSC, exist to ensure that the Canadian public will benefit from a suitable
level of quality of programming. The issue is not, however, only for the benefit
of the public at large. It is also, from a competitive point of view, for the
benefit of the broadcasters themselves. If, after all, most “play by the rules”
while some do not, there may be a cost to those who toe the line and a benefit
to those who do not.

In sum, the questions of good and bad taste will not be judged here; nor will
those generic issues which, pursuant to the Broadcasting Act and Regulations,
fall within the bailiwick of the CRTC. Only those specific Code-related issues
which are the responsibility of the Canadian Broadcast Standards Council are
dealt with in the balance of this decision.

2. The Anti-French Comments

When the first episode began, Stern's comments were directed at the
program's international audience (fuller extracts are provided in Appendix A
below). He said, in part:

Howard Stern: Good morning everybody, welcome back to the program
that never ends. You know, a two week vacation you figure you come back
all fresh and ready to go but it's worse than ever. Yeah, back to work, back
to the same battles, back to the same old crap. We are international now.
For the first time this broadcast is international and I couldn't be happier
because I'm sick of just being on in the United States of America. Yes, we
have two affiliates in Montreal, Canada and Toronto and let me tell you
something, this is no small feat. If you're thinking, “well, big deal, Canada
is just the United States anyway”, well, I'm thinking the same thing, but it's
still very difficult to get this program on in Canada. All hell has broken
loose. In fact, I'll ask Gary later in the program to bring in all the different
articles that have come out, particularly in Montreal, where the French-speaking people are out of their minds. They are insulted, you know,
they're a bunch of peckerheads. In Montreal, the French, the English-speaking people are fine, they're like us. The French are jack-offs.

Robin Quivers: Now, what is their problem?

Howard Stern: There is something about the French language that turns
you into a pussy-assed jack-off. I swear to God.

Howard Stern: But the biggest scumbags on the planet as I've said all
along are not only the French in France but the French in Canada.

Robin Quivers: Anybody who speaks French.

Howard Stern: Anybody who speaks French is a scumbag. It turns you
into a coward, just like in World War Two the French would not stick up for
us. The French were the first ones to cave in to the Nazis, and certainly,
certainly were over-productive for the Nazis, when they became their
puppets.

Robin Quivers: People still think there is still something special about the
market they're in.

Howard Stern: Yeah. And Toronto and Montreal created problems.
Montreal in particular because of the French there who are complete
pussies who think that somehow speaking French is the most important
thing in the world.

Caller Darrell (from Toronto): Howard, this is the greatest day. We are
so proud that you're up here. Ignore all those editorials; that's Montreal and
they don't know better up there.

Howard Stern: It's a big day! [Playing Howard Stern song and singing
along with it] Is in Montreal and in Toronto! Turn it on baby! Got a little
penis, baby! Yeah, baby, conquering Canada! Yeah, and Robin, too!
Yeah, baby! There's a lot of angry people but we're on in Canada! Hey, I'm
singing, Frig the French! Screw the French! You're going to have to listen
to Americans now! Screw your culture and we're invading your ass! For
as long as it lasts! Sorry.

The Decision Regarding the Anti-French Comments

The CBSCs Quebec and Ontario Regional Council considered the complaints
relating to the French and French-Canadians under the Code of Ethics of the
Canadian Association of Broadcasters (CAB). Clause 2 of that Code reads
as follows:

CAB Code of Ethics, Clause 2:

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

The CBSC also referred to the CRTC's Radio Regulations, 1986 on the
question of abusive comment and reference is made to them as well. The text
of Section 3(b) of the Radio Regulations, 1986, reads in pertinent part:

A licensee shall not broadcast

(b) abusive comment that, when taken in context, tends or is
likely to expose an individual or a group or class of individuals to
hatred or contempt on the basis of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability;

The CBSC has frequently been called upon to deal with the meaning of
Clause 2 of the CAB Code of Ethics. In CHUM-AM re Brian Henderson Commentary (CBSC Decision 95/96-0008, 0060 and 0061, March 26, 1996),
the Ontario Regional Council brought together many of the principles which
had been laid down by the CBSC over the course of the preceding three
years. Aspects of the CHUM-AM decision were strikingly similar to the case
at hand.

The wording chosen by the private broadcasters parallels, not
inadvertently, the Council believes, that used in the Radio
Regulations, 1986
. Whether intended to be humorous or serious
in tone, programming, whether live or pre-recorded, which “tends
or is likely to expose an individual or class of individuals to
hatred or contempt on the basis of [their] race, national or ethnic
origin, colour [or] religion” is not tolerable on Canadian airwaves.
While each individual must determine his or her limits of
tolerance at home, the manifestation of such intolerance on the
publicly-owned airwaves is unacceptable. The freedom to speak
or express does not include the freedom to defame.

In an era when the airwaves are transformed more readily and
frequently from music and drama to talk and comment, there are,
as a matter of fact, more talk and comment and more words on
the air. Consequently, on a simple proportionate basis, there are
more opportunities to err regarding the social responsibilities and
community values ensconced in the Code of Ethics. More care
is, therefore, required by broadcasters to ensure that the Code
provisions are respected.

In another CBSC decision in which striking language was also used, namely,
CKTF-FM re Voix d'Accès (CBSC Decision 93/94-0213, December 6, 1995),
the Quebec Regional Council held:

What may constitute the limits of acceptability in each
challenged case will need to be appreciated in its context.
Certain cases will clearly fall on one side or the other of the
boundary. Others will lie uncomfortably on the line. The matter
at hand was, however, free of doubt; the depiction of “Newfies”
as “assholes” was clearly unacceptable.

The CBSC has no hesitation in finding that, in this case, the expressions
“peckerheads”, “pussy-assed jack-offs”, “scumbags”, “pussies”, “Frig the
French” and “Screw the French” are clearly as abusive as the term “assholes”
used by the host in the CKTF-FM matter.

The Comedic Defence

In the present case, Stern indicated on September 2 that “This is another silly
comedy show”. Similarly, on September 3, he disparaged those who take the
show and his comments seriously by saying:

We're just trying to entertain, okay? This is not – I'm not a head of state.
We ought to remind Serge Menard that I am not a head of state. Okay?
I'm a disc jockey. Mellow out, get a sense of humour. Stupid. It's comedy,
not U.S. policy. Okay? I'm not the president yet.

And, on September 4, he used similar terminology:

Yeah, you can't say anything in fun. I'm evidently the president of the
United States.

And again on September 5, he expanded on the theme when the Coalition for
Responsible Television began urging a boycott of the show:

Howard Stern: Hey, just in case you're following Canada, all hell broke
loose. Now, the Coalition for Responsible Television, the CRTV, some
national advocacy organization representing over a million Canadians is
urging the boycott of the Howard Stern show, of advertisers.

Robin Quivers: But we're a radio show.

Howard Stern: Yes.

Robin Quivers: Why are they getting into this field?

Howard Stern: They're branching into radio because of me because I said
stuff like screw the French culture, frig the French, and all that kind of stuff.
Big deal! These attacks on Quebec are outrageous, said Valerie Smith, a
woman with a lot of time on her hands, and the Vice-President of the
Coalition. Stern clearly made statements contravening CRTC regulations
against the broadcast of comments likely to expose people to hatred or
contempt. Who knew they had a law like that?

Robin Quivers: Well, they do, apparently.

Howard Stern: Yes, well. It's jokes, it's jokes. Get a life.

In their responses to the complainants, the broadcasters had also defended
Stern's statements on the grounds that they were not intended to be taken
seriously. The CBSC has dealt with this issue on several occasions and one
of those earlier decisions provides an explanation of the circumstances in
which the comedic defence or excuse is relevant.

In CFTR-AM re Dick Smyth Commentary (CBSC Decision 95/96-0062, March
26, 1996), the commentator argued that he had not intended to be racist or
biased in his comments. In this case, Stern argues that he intends his
comments to be understood as humorous, as comedy, and that he ought not
to be taken seriously. He is not, he argues, the “president” or a “head of state”
and his comments ought not to be taken in that vein.

The fact that no-one mistakes him for a head of state does not mean that this
gives him the entitlement to say whatever comes into his head and out of his
mouth. The Regional Councils cannot comment on whether he might have
such a privilege in the United States but, in their view, he cannot expect such
a free rein in Canada. There are in this country limitations on what a
broadcaster is free to air and the use of abusively discriminatory language
such as he used on September 2 clearly surpasses the permissible. Even
had his comments been understood as comedic by some elements of his
audience, they would be excessive by Canadian standards. As the Quebec
Regional Council held in CKTF-FM re Voix d'Accès (CBSC Decision 93/94-0213, December 6, 1995), quoted in part above:

The matter at hand was, however, free of doubt; the depiction of
“Newfies” as “assholes” was clearly unacceptable. Whether
intended seriously or in jocular fashion, the use of that term in
reference to this or any ethnic, racial, national or other
discernible group was derogatory, abusive and discriminatory
and in violation of clause 2 of the CAB Code of Ethics.

Some have suggested that the fact that a significant proportion, perhaps 65%,
of the CHOM-FM audience is French-speaking had a bearing on the
appreciation of the comments made by Howard Stern. The suggestion has
been made that the abusive comments may have been made worse by reason
of the make-up of the station's audience. The Regional Councils disagree.
Every Canadian, regardless of nationality, is diminished by abusively
discriminatory remarks which are aimed at any identifiable group.

It has not, in fact, been surprising to the members of the CBSC that a sizable
component of the complaints relating to the negative comments directed at the
French and the French-Canadians have been articulated by Anglo-Canadians
in letters coming from Quebec and elsewhere in the country. What is
prohibited by the Code is the abuse of any group by comments “based on
matters of race, national or ethnic origin, religion, age, sex, marital status or
physical or mental handicap.” It is clear that representatives of English and
other linguistic groups have been as offended by the comments directed at
one group of Canadians as the Francophone members of that group have
been. That has also been as true of Canadians outside Quebec as Canadians
inside Quebec. This may be comedy in Stern's WXRK studio; it is not in this
country.

Consequently, the Quebec and Ontario Regional Councils find that CHOM-FM
and CILQ-FM are in violation of Clause 2 of the CAB Code of Ethics with
respect to the September 2 broadcast.

3. Political Commentary Relating to Quebec, France and Canada

The Regional Councils note the importance of differentiating between insults
aimed at identifiable groups and comments related to the political or historical
environment in Canada and in France. The breach they find is limited to the
comments mentioned in the foregoing section. Those comments relating to
the state of radio in Canada, the use of English in Quebec, the value of French
culture, Canada as an appendage of the United States, the role of the
vanquished French in Vichy France, the issues relating to separatism, and so
on, are the host's opinions and, unless utterly and irresponsibly uninformed,
as in the case of CKTB-AM re the John Michael Show (CBSC Decision 92/93-0170, February 15, 1994), they are his to espouse.

In CKTB-AM re the John Gilbert Show (CBSC Decision 92/93-0179, October
26, 1993), the Ontario Regional Council stated

that an opinion on the government policy of bilingualism
constituted an opinion on that issue and was not racially driven.
Nothing can be more fundamental to the principle of freedom of
speech enshrined in the Charter than the entitlement of an
individual to express a differing view on a matter of public
concern, including government policy.

Even in the John Michael case, the Ontario Regional Council pointed out that
it took no issue with the host's political perspective:

Mr. Michael expressed his opposition to the official government
policy of bilingualism and stated “nor could I give a damn if
Quebec stays in this country or not.” He added, among other
things, that “We no longer wish to kneel and bow to this one
province.” With these political perspectives, the Council takes
no issue. The host also opined that Quebeckers control the civil
service and generally wielded enormous political power within
Canada. These opinions may or may not be sustainable but they
are at least legitimately debatable.

The Quebec Regional Council adopted a similar position in the case of CFTM-TV re Mongrain (CBSC Decisions 93/94-0100, 93/94-0101, and 93/94-0102,
December 6, 1995).

As a public affairs program, Mongrain presents lively debate on
topical, and controversial, issues. The host may present a point
of view on such issues but, as the Code of Ethics affirms, there
must be fair and balanced treatment of those issues. In the case
at hand, Council asserts that Mongrain was entitled to express an
opinion on the nature, principles and operations of the Raëlien
movement.

In general, the Council's review of the first two weeks of the Stern show
discloses that the bulk of the commentary relating to Quebec, France and
Canada following the September 2 debut was of this nature rather than of the
abusive variety manifested in the comments directed at French-Canadians on
the very first day. It is the view of the Regional Councils that these political
and historical comments fall squarely within the bounds which freedom of
expression is meant to protect.

4. Abusive Comments Directed at other Identifiable Groups

Stern's remarks relating to French-Canadians were, in fact, only an example
of his casual attitude toward abusive commentary directed at identifiable
groups by virtue of their race, gender or sexual orientation. There is a regular
flow of racial, homophobic or gender-related offensive comments, some of
which are brief digs, and others of which extend to longer discussions. In the
period reviewed by the Regional Councils, he has targeted Japanese, gays,
Poles, Sikhs, blacks and Arabs among others. For example, on September
3, he referred to Sikhs by saying “smack the guy on the back of his turban”
and, on the following day, he mocked the Arabs:

Howard Stern: They found a beach without water, a desert, and there was
really nobody on it except some nomads and the reason they were
nomads, Arabs didn't even want these people.

Robin Quivers: And there was no place to stay on this strip of desert for
any great length of time. So they kept moving around.

Howard Stern: There was no – It was nothing. And they went there and
now there's a problem. So either the Israelis are allowed to blow up all of
their Arab neighbours, which I don't think is a bad thing because we would
end up with all the oil.

On September 8, he commented on blacks in the following terms:

Howard Stern: You must be black because you have two kids and you're
not married.

Robin Quivers: Now, now, now.

There is no need to extract every such comment from the endless stream of
invective. Nor is it necessary for the Regional Councils to repeat here what
they have said above regarding abusive and discriminatory comments relating
to the French and French-Canadians. They apply equally to these comments
made regarding other identifiable groups. The point, in the CBSC's view, is
that such comments are in violation of Clause 2 of the Code of Ethics and that
they will be ongoing, day after day, episode after episode.

5. Sexist Comments

One of the most continually recurring categories of Stern comments reflects
his on-air commentaries regarding women. It is clear to the members of the
Regional Councils that Stern portrays adolescent, puerile, crude attitudes
toward many sex and gender-related issues. These, though, generally fall
within the category of bad taste and are left by the CBSC to be judged, as
noted above, by the marketplace. Since, however, Stern regularly speaks his
mind, his general attitude has no more bounds in this area than in others
noted by the Regional Council members. Those comments which exceed bad
taste and violate Sex-Role Portrayal Code provisions fall into the area of
words and expressions used, degrading remarks regarding individual callers,
and comments reflecting on the intellectual and emotional equality of women
generally. Many, but not all, examples of Stern's sexist comments in the two
weeks of programs reviewed are quoted in Appendix B below. Briefer
references are cited here.

In addition to terms such as “pieces of ass”, “horny cow”, “dumb
broads”,”dikes” (referring to women with even moderately feminist views), and
“sluts”, which sprinkle the dialogue on the Stern Show, he frequently deals
with female guests on the basis of their physical attributes and sexual
practices rather than, or occasionally in addition to, the skills or talents which
are the reason for their common recognition. In the case of callers, he
regularly avoids the subject with respect to which they have called in order to
seek details of their bust size and weight as well as their sexual practices,
despite the fact that this information is utterly irrelevant to the subject of
interest. Excerpts from a number of the episodes in the first two weeks follow.

Excerpts from the September 2 episode:

Howard Stern: … Hey, I got to take a break, Spice Girls are here.

Robin Quivers: Oh, they are?

Howard Stern: Yeah, they're little knockouts. Little pieces of ass. I
wonder what they're doing here?

Howard Stern: I don't know their music but I don't care, I want to get in
their pants.

Howard Stern: One of the Spice Girls is trying to be like women's lib.
Seriously, aren't you? Like, you're angry –

Guest: We're about being girl power which is being who you want to be.
Actually, I reckon we should teach you a little bit about girl power.

Howard Stern: No. What are you, a bunch of dikes?

Howard Stern: And what were you doing with your boyfriend, making out
and stuff?

Melanie: Well, yeah I was actually.

Guest: We're not here to talk about that stuff!

Howard Stern: Yes you are.

Howard Stern: Yeah, I hear you, that sounds good. Spice Girls, will you
honour me by doing a song.

[Spice Girls sing their song.]

Howard Stern: All right, everyone, take off their tops now and do it.

Guests: Awww! You have to get rude, don't you?

Howard Stern: (laughing) Big deal.

Guests: Awwwww!

Howard Stern: Awwwww! I wish you were naked.

Excerpts from the September 4 episode:

Howard Stern: I see. So you're against separatism and then you had to
get in touch with me, and then –

Robin Quivers: Because you were feeling bad.

Caller Nicole: I was feeling bad and I was panicking and I couldn't see
anybody else that I could reach because here it's very bad, okay? And I
couldn't reach you because then you weren't with CHOM.

Howard Stern: Now do you feel better?

Caller Nicole: Yeah.

Howard Stern: What is your cup size?

Caller Nicole: Oh, come on.

Howard Stern: No really, how big are your breasts?

Howard Stern: Okay there you go. How much do you weigh?

Caller Nicole: How much do I weigh? 130.

Howard Stern: How tall are you?

Caller Nicole: 5'3″.

Howard Stern: Oy vey. Oh boy. Oh boy. Cellulite city.

Howard Stern: All right, ma'am, you gotta lose weight. I don't know what
you're talking about in terms of Canada and stuff.

Robin Quivers: Yeah, stop worrying about what we say and start running.

Howard Stern: Stop worrying about separatism and start worrying about
your weight.

Caller Nicole: I find you very insulting.

Howard Stern: Yeah, most of your country does. 130 pounds and what?

Caller Nicole: I'm not saying.

Howard Stern: 5'3″.

Caller Nicole: You're very insulting.

Howard Stern: Yes. If your parents aren't going to tell you, I have to tell
you. [Cow sound effects] That's too much weight.

Excerpts from the September 8 episode:

Howard Stern: Do you want to talk to a woman who was raped by a
psychic?

Robin Quivers: Oh, geez.

Howard Stern: Jillian?

Jillian: Ah, yes, is this Howard?

Howard Stern: Yes, hi, how are you doing?

Jillian: Pretty good.

Howard Stern: So how were you raped by a psychic?

Jillian: It's not quite that simple. I was dating a –

Howard Stern: Are you good looking, by the way? I mean, just so we
have some background, not that it's relevant.

Howard Stern: But you're just very blessed with a gorgeous body.

Jillian: Right.

Howard Stern: And your ass is like super firm?

Jillian: Ah, ah, yes.

Howard Stern: Okay, all right. I just wanted to know who I'm dealing with,
that's all. Not that has any relevance on –

Robin Quivers: Not to rape.

Howard Stern: Not to rape, but, you know.

Howard Stern: Would it be rude of me to ask for a nude picture of her?

Robin Quivers: Yes.

Howard Stern: It would?

Robin Quivers: Under these circumstances.

Howard Stern: She sounds really odd. Would you mind? Could you send
me some bikini shots?

Extracts from the September 11 episode:

Howard Stern: Patricia, you're on the air.

Caller Patricia: I'd just like to voice my opinion about you, and I'm real
sorry but I think you're very crude and that you have absolutely no respect
for the dead.

Howard Stern: Where are you calling from?

Caller Patricia: From Florida.

Howard Stern: How's the weather?

Caller Patricia: The weather is absolutely wonderful because you're not
here, dear.

Howard Stern: You want to know something? You fat cow! Let me tell
you something, honey.

Caller Patricia: I weigh less than 100 and I didn't call about my weight.

Howard Stern: You anorexic worm!

Howard Stern: You cow!

Caller Patricia: Well, you're a son of a bitch, asshole. Why don't you stick
your head where the sun don't shine?

Howard Stern: Maybe I will. Why don't you come down here? All you
want to do is bend over a chair and get a good high, hard one anyway, you
horny cow. That's your problem. No penis. Hey, you left, huh? Coward!
Hum…

Robin Quivers: Why do people want to call you and tell you?

Howard Stern: Well, it's funny. What a dumb broad.

Further excerpts from the September 11 episode:

Howard Stern: Yes, let the guy watch a ball game. He's a man.

Caller Marie: Howard, the problem was he was watching too many ball
games.

Howard Stern: For you. I don't mean to be crude, ladies, but would a man
ever spend ten seconds with a woman if she didn't have a vagina?

Robin Quivers: Ah, ah, ah.

In an unusual and particularly offensive moment, Stern made the following
sexist comments with violent overtones during the course of the September
4 episode:

Howard Stern: Yeah, Spike Lee. But now she wants to shut up. Oh, I just
wanna take that piece of ass body, put tape over her mouth, and do things
to her. [Playing sound effects of a woman in a sexual encounter
throughout the following passage.] And have her lay by my pool in a bikini
and have her come out and service me. And I'm laying by my pool, in
comes that nude with just a pair of heels. And then like, I reach in, I yank
out her vocal chords and then she just orally satisfies me by the pool. Oh,
she's totally a mute Kim. And she's totally nude.

Robin Quivers: That's a perfect world.

Howard Stern: Oh. And then I break her legs and position them in the
back of her head so that she's sitting, and they're permanently fixed like
that. We let them knit and mend.

He made a similar sexist/violent comment again on the 11th:

Howard Stern: You know why I dig that chick with the giant breasts, the
big balloon breasts, the one who gets a little chunky every once in a while.

Caller Blake: Tiffany.

Robin Quivers: Oh, she's got that round face.

Howard Stern: I like that. I'd like to suck her cellulite out of her body.

Caller Blake: Man.

Howard Stern: Yes, I'd like to cave her head in.

The Quebec and Ontario Regional Councils considered Stern's sexist
comments under Clauses 2 and 15 of the CAB Code of Ethics as well as
several of the provisions the CAB Sex Role Portrayal Code. The texts of the
relevant Code clauses follow (except for Clause 2, which has been cited
above). Clause 15 (Sex-Role Stereotyping) of the CAB Code of Ethics reads
as follows:

Recognizing that stereotyping images can and do cause negative
influences, it shall be the responsibility of broadcasters to exhibit,
to the best of their ability, a conscious sensitivity to the problems
related to sex-role stereotyping, by refraining from exploitation
and by the reflection of the intellectual and emotional equality of
both sexes in programming.

The original CAB Code of Ethics was followed by a more detailed Code which
expanded on the principles contained in Clause 15 of the earlier Code. The
CAB Sex Role Portrayal Code provides, among other things, the following
rules. First, the background of the Code is declared in its Introduction:

This Code reflects the responsibility of licensees, under the
Broadcasting Act
, to assure that their programming and
broadcast services achieve the highest professional standards
and demonstrates the broadcasters' commitment to the fair and
equitable portrayal of all persons in television and radio
programming.

Negative or inequitable portrayal and representation of women
or men can be expressed explicitly in programs and commercial
messages, as well as implicitly through images, dialogue and
character portrayal. Canadian broadcasters recognize the
cumulative effect of negative and inequitable sex-role portrayal,
and seek to address this issue effectively and responsibly with
this Code

In its definitions, the Code provides that

Negative or Inequitable Sex-Role Portrayal refers to language,
attitudes or representations which tend to associate particular
roles, modes of behaviour, characteristics, attributes or products
to people on the basis of gender, without taking them into
consideration as individuals.

Clauses 2(c) and (4) of the Code specifically prohibit the type of exploitation
which is endemic to the Stern Show:

(2) Diversity:

(c) Television and radio programming shall respect the
principles of intellectual and emotional equality of both
sexes and the dignity of all individuals. Television and
radio programming should portray women and men as
equal beneficiaries of the positive attributes of family or
single-person life. Women and men should perform in a
range of occupations and function as intellectual and
emotional equals in all types of thematic circumstances.

(4) Exploitation:

Television and radio programming shall refrain from the
exploitation of women, men and children. Negative or degrading
comments on the role and nature of women, men or children in
society shall be avoided.

The unrelenting use of terms such as “pieces of ass”, “dumb broads”, “fat
cow”, “dikes” (to refer to women because they may have even moderately
feminist views), and “sluts” and the like are exploitative and unacceptable.
This issue has long since been decided by this Council, which ruled in CFRB re Ed Needham (OWD Publication) (CBSC Decision 92/93-0096, May 26,
1993) that, where a “host used abusive, degrading and discriminatory
language when referring to women”, the broadcaster would be in violation of
Clause 2 of the CAB Code of Ethics (cited above) as well as Clause 15 of that
Code and various provisions of the CAB Sex-Role Portrayal Code.

It appears to the CBSC that every Stern episode reviewed by the Regional
Councils has revealed sexist comments which fall afoul of one or more of the
foregoing provisions. The CBSC's experience with Canadian broadcasters
is contrary to that observed here. In general, the CBSC has found that
Canadian broadcasters respect the provisions of the Codes which require
them to refrain from exploitative language and the negative reflection of the
“intellectual and emotional equality” of the sexes. Apart from two older CFRB
decisions, only one CBSC decision has been contrary to this experience. In
CKAC-AM re the Gilles Proulx Show (CBSC Decision 94/95-0136, December
6, 1995) a letter of complaint from a listener was followed by the broadcast
which became the subject matter of the complaint by the same listener. A
listener sent two letters commenting on the treatment of listeners and the use
of the French language by one of the station's talk show hosts. The host
responded by quoting from the letters, stating, several times, the listener's full
name and city along with several unacceptable comments including:

Why don't you get a job, you idiot, and if you don't like it and
have nothing better to do than write letters, at least send me a
photograph, so I could put it on my dartboard. You must be as
ugly as sin.

The Council found that this broadcast violated Article 4 of the Sex-Role
Portrayal Code
(among other Codes).

In exclaiming, for instance, that she was a “petite niaiseuse”
(dumb broad), “needs a good lay”, “as ugly as sin,” and “an idiot”
Proulx was aggressively abusive toward this female listener.
The Council believes, furthermore, that this language constituted
“negative or degrading comments on the role and nature of
women” in clear breach of the provisions of Clause 4 of the Sex-Role Portrayal Code.

Stern consistently uses degrading and irrelevant commentary in dealing either
with guests or callers. The CBSC understands, by his demeanour and
laughter, that he and, presumably, Quivers and others on his show find such
comments amusing. It may well be the case that many in his audience find
such comments entertaining. This sort of adolescent humour may work for
some in private venues but it is thoroughly in breach of Canadian codified
broadcast standards. Women in this country are entitled to the respect which
their intellectual, emotional, personal and artistic qualities merit. No more
than men. No less than men. But every bit as much as men.

There may be broadcast circumstances, say, in a dramatic or informational
context, in which physical attributes of either men or women may be relevant.
There may be corresponding circumstances in which sexual experiences of
either men or women may be relevant. The CBSC has not seen the relevance
of any of these, as spoken by Stern, in any of the tapes or transcripts it has
reviewed. Moreover, their use seems almost exclusively reserved for Stern's
dealings with women. The CBSC does not, however, consider that their
regular application to men would be an improvement in any way, except in the
balance of insults and irrelevancies. Such comments are constantly present
and reflect a fundamental attitude of the Show's host and his self-granted
entitlement to say whatever crosses his mind at any time. Many of the
subsequent complaints received disclose the same consistent approach to
sexist commentaries and the CBSC expects that future episodes, as well as
those reviewed, will be consistently in breach of the sex-role provisions of the
CAB Codes.

6. Suitability of Subject Matter for Children

While the type of comments dealt with above which breach the Codes would
do so at any time of the day, the CBSC is, with respect to other matters,
greatly concerned by the time of day at which the Stern Show is broadcast.
It was at least a persistent theme in many of the letters of complaint was the
inappropriateness of the content of the Howard Stern Show for the time of day
in which the program is broadcast, between 6 a.m. and approximately 10 a.m.
on weekdays. As one complainant put the matter: “Early, drive to work, a.m.
radio is not 2 a.m. 'for adults only' air time.” [CBSC Complaint 97/98-0214]
The issue would even appear to be one of concern to Stern himself, who
engaged in the following repartee with a reporter during the Montreal press
conference of September 2:

Unidentified Reporter: Howard, I understand you don't even let your own
children listen to your show.

Howard Stern: That is correct.

Unidentified Reporter: Why not?

Howard Stern: Would you let your kids listen to this show? Do you think
I'm proud of this. No, listen, my kids are young kids. This show is not
appropriate for a 11-year old. I'm a parent and, as a responsible parent, I
wouldn't let my kid listen to the show.

Robin Quivers: Nor should they be watching all movies or reading all
books.

Howard Stern: Yeah, I'm a parent. And that's what I suggest everyone
does. You know, people say to me, well, gee, how can you be on the air
if you don't believe your show's appropriate for children? Well, I'm a
parent. I don't let my kids watch every movie. I don't let my kids watch
every television show. Actually, I do, but. Cause I'm a lazy parent. And
actually, if they're listening to this show, I wouldn't even know it. But, you
know, I think also, actually, I would actually let my kids listen to the show
but the weird thing is that I'm their father and when I'm talking about me
shaving my pubic hair and stuff, I don't want my kids to know I'm up in the
bathroom doing that. I don't mind if your kids know that but I don't need my
kids knowing that.

Examples of inappropriate subject matter for that time of day abound. On
September 3, Stern began by saying:

Howard: All right, I want to get to your phone calls in two seconds, but I
read some amazing things in the newspaper I had to tell you about. Before
I went to bed last night and before I masturbated I was watching some of
the U.S. Open.

He then quickly got graphically into the subject of sex with his wife on their
recent vacation.

Howard Stern: That's right, I've got my birthday coming up. But anyway,
I'm 43 and I swear to you I have the sexual libido of an eighteen year old.
Robin, when I was on vacation, okay while I was in Florida I didn't diddle
myself at all because the kids, it was a family vacation and I was trying to
sort of be a family guy.

Robin Quivers: And when you think of family you can't do it.

Howard Stern: Yeah, and my wife and I had sex very little on vacation,
actually. Two times, maybe. Two times exactly, not maybe. Two times
exactly. We forgot to bring the vibrators and that's what went wrong.

Robin Quivers: You're kidding, you have to travel with them?

Howard Stern: Yeah, oh, yeah.

Robin Quivers: My goodness.

Howard Stern: My wife said the second we got there, “You're not going to
believe what I forgot.” I go, “What?”. She goes,”The vibrators”. I said,
“Well, there goes everything.”

Robin Quivers: Well, there goes the party.

Howard Stern: I mean the second we got there she realizes. It's so
embarrassing for me because I'm so bad in bed. And what my wife needs
is an orgasm, a lot of orgasms, before actual sex. And then she doesn't
care how long I last.

The September 5 episode opened with the following comments from
pornographic film star Jenna Jameson:

Jenna Jameson: Good morning and welcome to another Howard Stern
Show. My name is Jenna Jameson. I'm a famous porno actress. Howard
thinks that I'm very beautiful. Do you know that I'm holding this microphone
between my breasts, my firm, young 36D breasts? Now that I've gotten
your attention, stop grabbing yourself and turn up the radio because it's
time for the Howard Stern Show.

There was considerably more material of that genre during the course of the
September 5 episode. Indeed, there is during virtually every episode. In
addition, there were more complaints about the indecent language used by
Stern than almost any other matter during the course of the first two weeks.

The Decision Regarding the Suitability of Subject Matter for Children

Children represent an important value to Canadian society. This is reflected
in Section 3(c)(iii) of the Broadcasting Act, which states that the Canadian
broadcasting system should “serve the needs and interests, and reflect the
circumstances and aspirations, of Canadian men, women and children…” Out
of concern for children, Canada's private broadcasters, supported entirely in
this regard by the CRTC, in 1993 adopted the Voluntary Code regarding
Violence in Television Programming
, which contains strong proscriptions
regarding television programming containing violence intended for adult
audiences. In the first, and only, decision dealing with the children's sections
of that Code, CIII-TV re Mighty Morphin Power Rangers (CBSC Decision
93/94-0270 and 0277, October 24, 1994),

the Council considered it appropriate to remind Canadians that
the protection of children was one of the pillars of the Code's
existence
. Furthermore, those who drafted the Code were
conscious of the need to create this protection in an environment
in which preservation of the freedom of expression remains a
paramount but not immutable principle. [Emphasis added.]

The Ontario Regional Council also referred to the CRTC's Public Notice (PN
CRTC 1993-149), in which it said (at p. 2):

The Commission is generally satisfied that the CAB's revised
Code achieves the appropriate balance between preserving
freedom of expression and protecting the viewing public,
especially children, from the harmful effects of television
violence. [Emphasis added.]

The Public Notice returns to this theme again at p. 3:

The Commission is pleased that the Code establishes clear
guidelines for the depiction of violence in children's programming
that take into account the particular vulnerability of young
viewers
. … [Emphasis added.]

In the introductory language of the Violence Code, it was declared, “Canadian
private broadcasters are publicly endorsing the following principles:”

1.2 By their adherence to this Voluntary Code of practice,

1.2.1 that programming containing gratuitous
violence not be telecast,

1.2.2 that young children not be exposed to
programming which is unsuitable for them
,

1.2.3 that viewers be informed about the content of
programming they choose to watch.

1.3 By the adoption of this Voluntary Code Canadian private
broadcasters shall ensure these standards are met in the
production, the acquisition, the scheduling, the promotion
and the telecast of their programming. [Emphasis added.]

It is worth adding that the issue of content suitability for children has also been
addressed more recently by Canadian television services in the development
and application of a program classification system. Even though the CRTC
only required broadcasters to develop a classification system for violence in
programming, the broadcasters voluntarily added sex, nudity, language and
mature themes to their comprehensive rating system, as their extensive field
research had shown that these content elements were also of concern to
parents.

While the Violence Code provisions are not directly applicable to this case,
the concerns for children giving rise to those provisions exist throughout
Canadian broadcasting. Just as Canada has chosen not to abdicate
responsibility for the welfare of its children in the area of programming
containing violent material intended for adults, the CBSC considers that the
assessment of shock radio programming must reflect the application of
analogous concerns. Nor is this difficult to achieve, in terms of Canadian
private broadcasters' codified principles. In the “Background” section to the
Code of Ethics, the broadcasters state that

the most valuable asset of a broadcast is public respect which
must be earned and can be maintained only by the adherence to
the highest possible standards of public service and integrity.

Then the Code goes on to provide, in Clause 6(3), the language which is the
provision always used by the CBSC to deal with open-line or talk radio:

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

The CBSC considers that the “proper presentation of … opinion [or] comment”,
in the case of children is a function of what is suitable for them. In determining
that, the Regional Councils consider it instructive to make reference to
Canada's watershed rules.

The Watershed Hour

One of the major concerns of Canada's private broadcasters, as is evidenced
in the above quotations from the CRTC's Public Notice, concerned the
suitability of certain television programming to which young persons could be
exposed. Thus, they included, as one of the pillars of the Violence Code, a
“watershed hour”, which was defined in the following terms:

3.0 SCHEDULING

3.1 Programming

3.1.1 Programming which contains scenes of violence intended
for adult audiences shall not be telecast before the late
evening viewing period, defined as 9 pm to 6 am.

Broadcasters have readily understood that the watershed hour, although
created for questions of television violence, could serve as an across-the-board guideline for other forms of programming which might be unsuitable for
children. In CITY-TV re Ed the Sock (CBSC Decision 9495-0100, August 23,
1995), the first decision in which the CBSC had an opportunity to examine
issues of principle relating to the watershed hour, it observed, among other
things, that

it is worth noting what it is and what purpose it serves. In its
literal sense, it, of course, denotes the line separating waters
flowing into different rivers or river basins. Popularly, the term
has been applied to threshhold issues but the literal meaning of
the word gives the best visual sense of programming falling on
one side or the other of a defined line, in this case a time line.
Programming seen as suitable for children and families falls on
the early side of the line; programming targeted primarily for
adults falls on the late side of the line. …

In Canada, the watershed was developed as a principal
component of the 1993 Violence Code, establishing the hour
before which no violent programming intended for adult
audiences would be shown. Despite the establishment of the
watershed for that purpose, the Council has reason to believe
that broadcasters regularly consider this hour as a rough
threshhold for other types of adult programming. There is, in
fact, no formal restriction on the timing of broadcasting of slightly
“racy” material but the earliest of the promos under consideration
here could not be said to have been run in a time slot which was
primarily a young children's slot or even at a time when one
would have expected significant numbers of young children to be
watching television at all.

In CFMT-TV re an Episode of “The Simpsons” (CBSC Decision 94/95-0082,
August 18, 1995), the Ontario Regional Council elaborated on the significance
of the watershed hour and the tendency for broadcasters to apply it not only
to programming containing violent material intended for adult audiences but
also to programming containing other kinds of material deemed by the
broadcaster to be more suitable for mature viewers.

There has been a tendency, since the introduction of the 9:00 pm
watershed hour for everyone to treat that moment as the Great
Divide. The community has tended to consider that all post-watershed programming falls into the “adults only” category and
that all pre-watershed programming falls into the “suitable for
everyone, including young children” category. Neither
generalization is wholly accurate.

The watershed hour is only the hour before which no
programming containing scenes of violence intended for adult
audiences may be shown. Private broadcasters have voluntarily
tended to extend this principle to all programming containing any
material which they believe is intended for adult audiences, even
if not of a violent nature.

It is a small irony that the host of the Howard Stern Show states that, in his
own view, his “show is not appropriate for a 11-year old. I'm a parent and, as
a responsible parent, I wouldn't let my kid listen to the show.” In any event,
it is the Canadian broadcast standards which apply to this program and the
stations which broadcast it and, in the view of the Quebec and Ontario
Regional Councils, descriptive opinion and comment such as that cited above
regarding the sex life of Stern and his wife, details of which were broadcast
during hours when children could be expected to be listening to radio is
certainly not proper material for Canadian children. The Regional Councils
also have no hesitation in concluding that Stern's language is not at all
suitable at an hour when children could be expected to be listening to radio.
Moreover, the issue of unsuitable language and the graphic discussion of
sexual situations occurs with consistency, day in and day out on the Howard
Stern Show.

While the CBSC has always advocated the importance of the vigilance of
parents in determining what their children should watch and see, the Canadian
solution has always been more pro-active than that. There is a belief among
Canada's private broadcasters and on the part of the regulator that there
ought to be rules in common, applied by the broadcasters themselves, to
ensure that the entire responsibility for what is viewed or listened to in
Canadian homes is not left solely to parents. The establishment of codified
standards has been a mark of the responsibility of Canada's private
broadcasters in taking these fundamental burdens initially on their shoulders.
While the envelope gets pushed from time to time, broadcasters have also
shown their willingness to have a self-regulatory body, the CBSC, evaluate
and interpret the meaning of the codified principles in their name.

The globalization of the late twentieth century village does not mean the
abdication of the maintenance of order within its Canadian borders. The
existence of other standards in other parts of the global village cannot weaken
the need to apply home-grown standards within the Canadian bailiwick. The
bar should not be lowered in Canada just because it is set at a lesser height
elsewhere in the village. There is no need for the chain of vigilance here to
be as weak as its weakest links elsewhere. If, however, an alert to the re-definition of principles is called for by what is created in other parts of the
village, Canadian broadcasters have consistently shown their willingness and
skill to rise to such challenges. Shock radio should be no more demanding
than any other challenge which has hitherto been presented to them.

It is the view of the Quebec and Ontario Regional Councils that the unsuitable
language and graphic discussion of sexual situations is not proper material for
Canadian children and does not meet their needs in a broadcast sense. Nor
does it meet the high standards of public service and integrity that the industry
has set for itself when aired during a time of the day when children could
reasonably be expected to be a part of the audience. In addition, therefore,
to the other concerns expressed by the CBSC, it is its view that the time
period in which the Howard Stern Show plays is entirely inappropriate and that
the unsuitable language and graphic discussion of sexual situations which the
CBSC found in the two weeks of episodes it reviewed will be repeated on a
daily basis in future episodes, thus rendering the broadcasters carrying it in
constant ongoing violation of the Code of Ethics.

The Broadcasters Responses

In addition to measuring the substance of the programs against the Codes, the
CBSC always considers the appropriateness of the broadcaster's response
to the complainant's letter. In this case, the task for the two broadcasters was
mammoth. While there is no doubt that the size of the problem related to their
own decision to import the program, it must be pointed out that both stations
worked quickly and efficiently to categorize the letters and to respond to them
on a timely basis. Each letter was individually prepared, addressed and
mailed or e-mailed, according to the medium originally used by the
complainant. The letters dealt, as best they could, with issues not of their
making but for which, as broadcasters, they must take full responsibility. That
many listeners were not satisfied by the responses does not mean that they
were inappropriately executed. The CBSC considers that both stations
fulfilled their responsibility of responsiveness.

Content of Broadcaster Announcement of the Decision

Each of the stations is required to announce this decision forthwith, in the
following terms, during prime time and, within the next thirty days, to provide
confirmation of the airing of the statement to the CBSC and to each of the
complainants who filed a Ruling Request.

In the case of CHOM-FM:

The Canadian Broadcast Standards Council has found that
CHOM-FM has breached provisions of the industry's Code of
Ethics
and Sex-Role Portrayal Code. The Council found that
each episode of the Howard Stern Show during the weeks of
September 1 and September 8, 1997 contained abusive or
discriminatory comments directed at French-Canadians and
other identifiable groups, made sexist remarks or observations,
or contained unsuitable language or descriptions of sexual
activity during a broadcast period when children could be
expected to be listening to radio.

In the case of CILQ-FM:

The Canadian Broadcast Standards Council has found that
CILQ-FM has breached provisions of the industry's Code of
Ethics
and Sex-Role Portrayal Code. The Council found that
each episode of the Howard Stern Show during the weeks of
September 1 and September 8, 1997 contained abusive or
discriminatory comments directed at French-Canadians and
other identifiable groups, made sexist remarks or observations,
or contained unsuitable language or descriptions of sexual
activity during a broadcast period when children could be
expected to be listening to radio.

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

[For the Appendices, click here]