CILQ-FM re “Two Minutes Away” promos

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

THE FACTS

CILQ-FM, more familiarly known as Q107, is a rock radio station in Toronto.  In early 2007, Q107 was airing the following promotional liners for the station: “You’re never more than two minutes away from great classic rock.”  The CBSC received a complaint from a listener who alleged that the station was not delivering on that promise; that is, there was frequently more than two minutes worth of non-musical content between songs.  The listener’s first letter of April 9, 2007 read as follows:

My complaint is with the radio station Q107 in Toronto.  They have been advertising now for some time that “You’re never more than two minutes away from great music” yet listening to their station, particularly in the morning, they don’t come anywhere close to this advertised promise, with some stretches of talking going five or six minutes between songs.  I feel this is a form of false advertising and I wonder how they are able to get away with this.

After the CBSC explained to him that it requires specific broadcast dates and times in order to pursue a complaint, he wrote back on May 22:

I have attached a document showing a one-hour time-line of programming for Q107 radio station in Toronto for Friday, May 18, 2007 between 8:38 am and 9:38 am in regards to their constant advertising that “you’re never more than 2 minutes away from great classic rock”.  You will see there are a few stretches of 12 and 14 minutes when NO music is played, and they even advertise this “never more than 2 minutes” during a 4-minute break!!!  There were 2 minutes of music in the first half hour of this time frame!!!!

As indicated in his e-mail, the complainant attached a document providing a detailed description, with precise times, of the content broadcast during the one-hour period indicated (that document and the full text of all other correspondence can be found in Appendix B).

Q107 replied to the complainant on June 8:

We have reviewed the logger tape from May 18, 2007, between the hours of 8:38 am and 9:38 am.  At no point was the Promotional Liner aired.  While it is true that 12 and 14 minute segments were aired without music, this is typical during the broadcast of our Morning Show.  We did not find any instance in which the Promotional Liner was broadcast during a 4-minute commercial break.

As you know, the Station has a music format, and broadcasts mainly classic rock.  Like most music stations, the Station does not only broadcast music; our Morning Show, which airs between 5:00 am and 9:00 am, Monday to Friday, consists of some music, some news and information, and some other ‘spoken word’ content.

Recently, the Station reduced its commercial inventory between the hours of 9:00 am and 5:00 am.  During those hours, we only air commercials in two minute increments, or as we call them, 2 minute “stop-sets”.  The Station now promotes the 2 minute stop-set by broadcasting the Promotional Liner during the hours in which the 2 minute stop-sets are aired, usually before a commercial break.  The Promotional Liner is not broadcast between the hours of 5:00 am and 9:00 am, when our commercial breaks tend to be longer than 2 minutes, and when we broadcast more than just music.

In view of the foregoing, we do not believe that the Station’s broadcast of the Promotional Liner has been misleading in any way that would constitute a violation of the Canadian Association of Broadcasters’ Code of Ethics (the “Code”), which is administered by the CBSC and to which we adhere.  We take our responsibilities as broadcasters very seriously, and work hard to make sure all of our programming complies with the Broadcasting Act, the Radio Regulations and the Code and standards required of us as a member of the CBSC.

The complainant filed his Ruling Request on June 20 and explained that he did not agree with the station’s characterization of the issue:

Let me state that my interpretation, and many others I have discussed this with, of the promotional liner above is this:

I will not have to wait MORE than 2 minutes, EVER, 24 hours a day, 7 days a week, 365 days a year from the time one song ends to when the next song begins.  That is what that promotional liner implies!  2 minutes!  No matter how you spin it.  I think it is pretty clear.  It doesn’t say no more than two 2 minutes commercial stop-steps with spoken word thrown in-between.

[…]  How can I NEVER BE MORE THAN 2 MINUTES AWAY FROM GREAT CLASSIC ROCK when they acknowledge in their letter that they have no intentions of fulfilling this for at least 4 hours a day during their morning show as [the Program Director] says in his letter.  I did not make an audio recording, only hand notes but I do know what I heard!  And that was the airing of this liner twice in the hour I carefully listened to and made detailed notes.  Regardless of whether it was aired or not, they continue to air the liner immediately after the morning show and constantly throughout the day, between the hours of 9:00 am and 5:00 am.

[…]

I will acknowledge that since my initial complaint they have changed the wording to this liner during the hours of between 5:00 am and 9:00 am to “Coming up at 9 you’re never more than” because, as he acknowledges in his letter, their commercial breaks tend to be longer than 2 minutes and they broadcast more than just music during that time frame.  But as you can see from a 2-hour snapshot of 1 day they have no intention of fulfilling this promotional liner morning or afternoon.  […]

In closing of his letter, [the Program Director] says ”we do not believe that the station’s broadcast of the Promotional Liner has been misleading in any way.”  I strongly disagree and I think the whole use of these promotional liners is seemingly intentionally misleading, and at times seem to be aired intentionally during breaks longer than 2 minutes […].

The station provided the CBSC with recordings of its May 18 broadcast from 8:00 to 10:00 am (a precise break-down of the content and times can be found in Appendix A).  The time slot from 8:00 to 9:00 am was the concluding hour of Q107’s morning show, Derringer in the Morning which aired from 5:00-9:00 am.  It consisted of banter between the hosts, news, sports, traffic updates, advertisements, and promotional spots for a station contest.  It was not until 8:21 am that a song was played, which lasted until 8:25 am.  The next song was broadcast at 8:33-8:38 am and, following more banter between the hosts, a traffic update and a series of advertisements, another song at 8:50-8:53 am.  The “2 Minutes Away” promo did not air during this hour block of time.

The morning show ended at 9:00 am and Joanne Wilder took over as DJ.  It was during this hour that the promotional liner in question was broadcast.  For example, at 9:13 am, viewers heard “The Q107 nine-to-five classic rock superset, in concert with Grand & Toy, rolls on next.  You’re never more than two minutes away from great classic rock.”

A similar promo aired at 9:26 am: “You’re never more than two minutes away from great classic rock.  Q107.”  That exact promo aired an additional two more times, as well as three other variations of it, including “There you go.  The quickest two-minute break in radio.  You’re back to more great classic rock.  Q107.”  And “The waiting is the hardest part.  Not on Q107, where you’re only two minutes away from more great classic rock.”  Wilder played a total of nine songs during the hour from 9:00 to 10:00 am, interspersed with her commentary, advertisements, other promos for the station and the “2 Minutes Away” promos.  In some cases, roughly two minutes or less elapsed between the conclusion of one song and the beginning of another; however, in at least three instances, the span was three or four minutes.

THE DECISION

The Ontario Regional Panel examined the complaint under Clause 12 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics.

Clause 12 – Contests and Promotions

All on-air contests and promotions shall be conceived and conducted fairly and legitimately and particular care shall be taken to ensure that they are not misleading, potentially dangerous or likely to give rise to a public inconvenience or disturbance and that any prizes offered or promises made are what they are represented to be.

The Panel Adjudicators read all of the correspondence and listened to a recording of the broadcast in question.  The Panel concludes that the station violated Clause 12 regarding misleading promotions.

A Mathematical Issue

This matter is not, as is popularly said in many contexts, rocket science.  The representation at times material to this complaint was that “You’re never more than two minutes away from great classic rock.”  The Panel assumes that there was a reason for such an on-air representation — it was to attract listeners.  That’s fair.  And reasonable.  The question for the Panel is whether it was accurate.  In this respect, the Panel considers it important to note, preliminarily, that it does not agree with the complainant’s interpretation of the words “two minutes away”.  The two minutes can, after all, run in either direction.  In other words, one could still, quite legitimately, be four minutes away and still be within two minutes from the song that just ended and, upon the expiry of that two minutes, be within two minutes of the song about to begin.  That is not hair-splitting or quibbling; it’s accurate, whether or not the broadcaster had actually contemplated that meaning.  It is what the words say.  That said, had the broadcaster planned such an interpretation, one might conclude that it would have constituted a way of fooling listeners, a way of taking advantage of a loophole.

Alas, though, for the broadcaster, in the larger context, that correct interpretation of the phrase is of little help, although it finds some application in the post-morning drive period.  In the first half hour of the challenged May 18 time period, there was no song before the lapse of 21 minutes.  And then another 12+ minutes before the next song (in the second half hour).  Then just under 12 minutes until the next.  Then 13 minutes (into the third half hour) for the fourth song.  Once the Derringer program ended at 9:00am, the music proliferated: at intervals of 2:18, 0:05, 4:17, 2:18, 0:33, 4:19; 2:11, and 3:35 during the 9:00am – 10:00am period.

Were this decision to be confined to the 9:00am – 10:00am period, even applying the generous interpretation of the “never more than two minutes away” phrase, the Panel would be reluctant to find a breach of Clause 12.  The slight overages on two of the eight promos (namely, 4:17 and 4:19) would not be material.  The broadcaster created a greater problem for itself, though, by not qualifying or restricting other words in the promo.  By saying, and reiterating, never, without excluding the very large block of time between 5:00am – 9:00am, it appears to the Panel that it was purposefully luring listeners by the promise of frequent music.  In so doing, the Panel concludes that Q107 did not, as the Clause requires: deliver its promotions “fairly and legitimately”; take “particular care […] to ensure that they [we]re not misleading”; and make certain that the “promises made [we]re what they [we]re represented to be.”

In summary, the Panel concludes that the “never more than two minutes” representation was in breach of Clause 12 of the CAB Code of Ethics.  The Panel is also concerned about this second breach of Clause 12 by Q107 in a relatively short space of time [see CILQ-FM re the broadcast of a Rolling Stones concert (CBSC Decision 04/05-1911 & -1915, December 15, 2005)].

Broadcaster Responsiveness

In all of its decisions, the CBSC examines the response of the broadcaster to the complainant(s).  The CBSC expects that the station will provide a thorough, thoughtful and detailed reply to any and all complainant concerns.  In doing so, the broadcaster need not agree with a complainant’s view of the broadcast.  Indeed, it is usually only when there is a difference of opinion between the broadcaster and the complainant that a complaint results in adjudication by a CBSC Panel.  In the matter at hand, Q107 provided a focussed response to the complainant.  It appears, further, from the complainant’s correspondence, that the station’s responsiveness did lead it to responsively modify the “never more than two minutes away” promotion in response to the complainant’s challenge to the practice.  The Ontario Regional Panel finds that Q107 clearly met its responsibilities of responsiveness in this instance.

ANNOUNCEMENT OF THE DECISION

CILQ-FM is required to: 1) announce the decision, in the following terms, once during morning drive within three days following the release of this decision and once more within seven days following the release of this decision between 8:00 am and 10:00 am, that is to say, during the time period in which the broadcast of the promotional liner was challenged; 2) within the fourteen days following the broadcasts of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CILQ-FM.

The Canadian Broadcast Standards Council has found that CILQ-FM (Q107) violated the Canadian Association of Broadcasters’ Code of Ethics  in its use of station promotions promising that listeners would never be more than two minutes away from great classic rock, which was not always the case.  By broadcasting those promos in May 2007, Q107 violated Clause 12 of the Code, which requires that promotions be fair and legitimate, not misleading, and that promises made are what they are represented to be.

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