CJCH-TV, CKCW-TV & ASN re “Save Local TV” campaign

Atlantic regional Panel
B. Jones (Vice-Chair), R. Cohen (ad hoc), K. Hicks, B. MacEachern, R. McKeen, T.-M. Wiseman

THE FACTS

This decision deals with separate broadcasts on television outlets owned by CTVglobemedia, which took place in the Atlantic and Ontario Regions.  Since the broadcasts fell under the jurisdiction of different CBSC Panels, they were destined to be treated separately.  Although the challenged content of the various broadcasts was different, the underlying reasoning was common to both adjudications and, in addition to an individual complainant about an Atlantic CTV station, there was a group complainant filing a single document covering both Atlantic and Ontario CTV station broadcasts.  In the circumstances, although the Panel adjudications were held separately, the two Panels agreed that their decisions should be issued in a single document.

Throughout 2009, factions of the Canadian broadcasting industry were debating an issue familiarly known as fee-for-carriage (and referred to in that way at material moments in all of the challenged broadcasts dealt with herein).  The issue was also subsumed by the Canadian Radio-television and Telecommunications Commission (CRTC) as a part of its determinations listed immediately below under their terminological choice, value-for-signal.  Prior to the publication of this decision text, the CRTC released three documents: A Group-based Approach to the Licensing of Private Television Services, Broadcasting Regulatory Policy CRTC 2010-167 (22 March 2010); Reference to the Federal Court of Appeal Commissions Jurisdiction under the Broadcasting Act to Implement a Negotiated Solution for the Compensation for the Fair Value of Private Local Conventional Television Signals, Broadcasting Order CRTC 2010-168 (22 March 2010); and The implications and advisability of implementing a compensation regime for the value of local television signals: A report prepared pursuant to section 15 of the Broadcasting Act (23 March 2010).  Each of these dealt, among other things, with the value-for-signal issue.  The arguments for both sides of the debate are complex and the  Atlantic and Ontario Regional Panels will not touch on the merits of the underlying substantive issue in this decision.

In brief, though, to assist readers of this decision, the two sides may be reduced to the following broad lines. The conventional television broadcasters argued that broadcasting distribution undertakings (in short, BDUs, the technical term used in the industry to designate distributors of television programming, whether by cable or satellite) should pay the broadcasters to carry their signals, the equivalent of the BDUs’ arrangement for the carriage of pay and specialty services.  The BDUs argued that they should not have to pay for conventional television signals because, among other things, those signals are available free over the air and they, the BDUs, are legally required to carry them.

Although the fee-for-carriage issue had arisen at CRTC proceedings in the past (and the CRTC had determined as a result of those earlier hearings that conventional broadcasters should not receive BDU payments for their signals), the CRTC agreed to revisit the subject at public hearings in November and December 2009.  It was those hearings that resulted in the Broadcasting Regulatory Policy, the Broadcasting Order and the Report to the Governor-in-Council referred to in the second paragraph of this decision.

In anticipation of those hearings, both sides of the debate launched public relations campaigns in the Spring of 2009.  The television stations’ campaign was generally known as “Save Local TV”, while that of the BDUs was broadly branded as “Stop the TV Tax”.  Both campaigns included print and billboard advertisements, and television promotional spots, as well as public appearances and media interviews by representatives from each side of the debate.  CTV-owned broadcasters also held rallies and open houses so that their viewers could demonstrate their support for their local stations and get a behind-the-scenes look at the television operations in their communities.

Although the fundamental issue of whether or not conventional television stations should receive compensation for their signals from the BDUs was a matter that fell under the CRTC’s jurisdiction, the CBSC received complaints about the coverage of the debate during some of the broadcasters’ programming.

The CBSC received a total of 12 complaints about CTV’s “Save Local TV” campaign across all CTV-owned stations in the country.  Seven of those complaints did not identify a specific station or broadcast, so those complainants were not provided with an opportunity to request a CBSC ruling.  Three of the complainants who identified a specific station or broadcast were presumably satisfied with the broadcaster’s response and thus chose not to file a Ruling Request.  One individual in the Atlantic region filed his Ruling Request regarding coverage of the issue on CJCH-TV (CTV Atlantic).  The other complaint for which the CBSC received a Ruling Request came from a consortium of BDUs.  Both of those complaints and a description of the challenged broadcast content are below.

Complaint From An Individual Viewer

One individual complainant did file a Ruling Request.  His initial letter of May 14, 2009 was originally sent to the CRTC and forwarded to the CBSC in due course.  That letter read as follows:

I am appalled at CTV’s efforts to scare the public into supporting carriage fees over cable.  To suggest, as their current propaganda campaign suggests, that local tv news operations and stations will be shut down altogether is quite simply a lie.  If BCE can’t run these stations profitably, then someone else will come in and succeed where they are failing.  As far as local news is concerned, journalists with the right skill set and an entrepreneurial streak will come in and provide an even better service online if they actually were allowed to violate their licence in this way.  The owners of these stations made millions in previous years — and now they want consumers to pick up the tab because they aren’t smart enough to come up with a solution on their own.  The very propaganda campaign they are waging is an abuse of the public airwaves and should be curtailed.  I can’t express just how much I object to this kind of intimidation.  You should tell them to cease and desist immediately or allow people like me equal time to express an opposing viewpoint.

The CBSC informed the complainant that he would need to provide the specific date and time of a CTV broadcast that concerned him in order for the CBSC to be in a position to consider his complaint.  The complainant provided that information via the CBSC website complaint form on May 24:

station:             CTV Atlantic

program:           Live at 5, Evening News

date:                 May 22, 2009

time:                 5:00 pm and 6:00 pm

concern:           I wish to make a formal complaint about CTV’s violation of the Broadcasting Act with regards [to] its use of news programming to lobby for carriage fees.  I watched CTV Atlantic’s 2-hour news broadcast this past week with a sense of unbelief as so-called journalists participated in a blatant self-serving propaganda campaign.  There was not even a semblance of balance or fairness in their coverage of this issue.  Carriage fees are not the answer to what ails the local television news business.  Better coverage in the public interest is what will gain and sustain an audience and advertisers, not pennies from heaven.  If CTV Atlantic is so concerned that it blackmails the public into believing it will get out of the local news business, then it should have its licence revoked and allow others to bid for the privilege of serving the public in a professional manner.  I want you to tell me what you are going to do to stop CTV’s current campaign of intimidation and disregard for the consumer.  I look forward to your reply.

P.S.      I spent more than 25 years as a broadcast journalist in Canada and overseas and I have never seen anything close to this raw disdain for the public interest in the interests of corporate profits.

The Director of News and Public Affairs at CTV Atlantic responded to the complainant on June 12 with the following letter:

We have received your complaint about the balance and fairness of our news coverage as it relates to the “fee for carriage” issue for local private broadcasters and CTV’s “Help Save Local Television” campaign.

The first voice in our first story about this issue, broadcast on May 12th, came from Dan McKeen, Co-CEO of Eastlink Cable.  He called “fee for carriage” a tax to support local broadcasting that penalizes cable customers:

It is essentially a tax – a tax to support local broadcasting.  If the government wants to support local broadcasting with a tax, then they should put in a tax that affects all customers, not just cable customers.”

CTV Atlantic also broadcast, on May 29th, a 6-minute interview with Ken Englehart, Chief of Regulatory Affairs for Rogers on this issue.

Mr. Englehart argued that cable companies should not have to pay for free signals they are legally forced to carry.  He offered the opinion that the trouble facing local television is caused by the recession and bad business decisions:

“CTV and Global have made some bad business decisions.  They’ve gone on sort of a berserk spending spree in Hollywood and they’ve spent too much money for programmes.  It is not right to make customers pay for their business decisions.”

We have also reported that the cable industry has accused CTV of unbalanced and one-sided coverage of this issue.

We must strongly disagree with your suggestion that CTV Atlantic has participated in a “blatant self-serving propaganda campaign.”  The CBSC has recognized in past decisions that it does not assess the issue of balance only within the confines of a single program or single news report.

We believe the “fee-for-carriage” issue affects all private stations including CTV, ‘A’, Global, Rogers (as the owner of private stations) and others.  Private broadcasters are facing many challenges, as witnessed by layoffs, potential station closures, stations selling for $1-dollar and entire networks up for sale.  However, in our news coverage, as stated previously, contrary positions were provided.

We understand that this may be perceived as a difficult issue for local television reporters to cover.  However, we believe that CTV Atlantic has been fair and balanced in its coverage of the “fee for carriage issue”, in accordance with the Broadcasting Act and all industry codes and guidelines.  CTV is a member in good standing of the CBSC and adheres to its guidelines.

Thank you for watching and taking the time to write with your concerns.

The complainant was dissatisfied with that response and filed his Ruling Request on August 8.  He also requested a copy of the broadcast for his own review because CTV Atlantic had refused to provide him with one (the full text of that letter and all other correspondence can be found in Appendix B).  The CBSC explained to him that it also was unable to provide him with a copy, but that it would proceed with an investigation of his complaint and provide transcripts of the relevant broadcast segments in the forthcoming decision (and appendices).

The two programs that the complainant identified were Live at 5 and CTV News at Six which are broadcast back-to-back from 5:00 pm to 7:00 pm on weekdays on CJCH-TV.  Live at 5 is an information program that provides more in-depth and general interest stories than the CTV News at Six newscast which follows at 6:00 pm.  On May 22, both programs were broadcast live on location from Stellarton, Nova Scotia.  Live at 5 was hosted by Starr Dobson and Bruce Frisko and also included features by Steve Murphy, Liz Rigney and weathercaster Cindy Day.  CTV News at Six was hosted by anchor Steve Murphy.  It included reports on the day’s news as well as interviews and other commentary.

Live at 5 began with the following introduction by Starr Dobson:

Dobson:           And I’m Starr Dobson.  Delighted to be back home here in Pictou County.  We are broadcasting from the Museum of Industry in Stellarton this evening as part of our Celebration of Local TV Tour.

The program included brief news headlines, sports highlights and weather reports, but was primarily composed of general interest stories about the local area, such as a profile of the local museum, information about the history of coal mining and a story about a female high school student who had saved an abused horse.  During the first commercial break, a promotional spot for CJCH-TV’s upcoming Open House aired.  That promo featured newscaster Steve Murphy and reporter Liz Rigney standing in the CTV studio.  The dialogue and visuals were as follows:

Rigney:             We are incredibly proud of the job we do telling our local Maritime stories.

Murphy:            But, you know, local television faces many challenges.  Challenges that threaten our very survival.

Rigney:             That’s why we want to tell you our story.  Come by CTV Halifax for an Open House on May 23rd.  Meet the people who bring local television to you and take a look behind the scenes.

The promo then showed scenes of people working in the studio with the following words on screen:

CTV Halifax

2885 Robie Street

Saturday, May 23

12:00 – 4:00 pm

www.SaveLocal.ctv.ca

Murphy:            Local television is an important voice in our community and we want it to continue.  So please join us on May 23rd and tell us why local television matters to you.

Following the commercial breaks, the program featured pre-recorded commentaries from various local personalities expressing their support for local television.  The first one was from Moncton Mayor George LeBlanc:

George Leblanc [standing outside building]:       I’m George LeBlanc, Mayor of Moncton.  And I support local television for Moncton, New Brunswick.

The main program then resumed with Frisko and Dobson introducing a retrospective segment of some of the most important stories that CTV Atlantic had covered over the years.

Frisko:  Thank you, George.  […]  Well, uh, as you probably know, this week we are celebrating, uh, local television.  If you watched the broadcast last night, you know that we brought you part one of, uh, of a special report.  We looked at how we covered, uh, the top news stories over the last few decades.

Dobson:           Tonight, we have part two of that special series, which includes the big storms and a mining tragedy this very town will never forget.

There was then a montage of clips of top stories from the past, each clip transitioned with the CTV logo.  Frisko concluded the piece as follows:

Frisko:  So many memories.  And we hoped you enjoyed our special two part look-back at how our station has covered, uh, some of the big stories over the last few decades.  Hope you enjoyed it as much as we enjoyed bringing it to you.

Other bumpers going back into the program after commercial breaks featured a local business owner, a city councillor and a high school teacher:

Hazel Palmer [standing inside a picture framing store]:    I’m Hazel Palmer from New Glasgow.  I support local television.  I want to see our town on the television.

David Kelly [standing outside]:  Hi, my name is David Kelly.  I’m a member of Fredericton City Council, the capital city of the province of New Brunswick.  Local TV matters to me because you say it like it is, it gets the message out to the people, it helps the people during certain times of events [sic], whether it be good times and [sic] bad times.  But the people of the television, they’re always there to help others and that is what is important to me.

George Gregory [standing outside CTV building]:           Hi, I’m George Gregory from Memorial Composite High School in Sydney Mines, Nova Scotia.  And I’m the instructor at the province’s only secondary level radio and television broadcasting course.  I support local television because it gives my students an opportunity to go out into the community and work side by side with industry professionals at the local television level.  Covering topics that matter in the local community.  Without local television, these opportunities would never present themselves.

The program hosts concluded Live at 5 by reminding viewers about the Open House:

Dobson:           And if you happen to be in the Halifax area tomorrow between twelve and four, we would love to see you at our Open House at CTV Atlantic.

Frisko:  That’s right.  We want to show you how we make, uh, local television that we’ve been bringing you for years.  And get a chance for you to come in and look around and, uh, and see how we do things.  We’d really love to see you there.  Bud and Nancy True, by the way, coming out of retirement.  Bud the Spud is coming out to donate his efforts to help save local television.

Dobson:           That’s great.

Frisko:  So that’s good news right there.

Day:     It is.

As noted above, Live at 5 was followed by CTV News at Six, which was a more traditional newscast with a news anchor and various reports on the day’s events.  Fourteen minutes into the program, anchor Steve Murphy introduced a retrospective “Looking Back” segment:

Murphy:            Well, CTV has been very proud to be part of the community here in Northern and Eastern Nova Scotia and Cape Breton for a very long time.  Our TV station in Sydney signed on way back in the dawn of the early age of television in the early 1950s.  And in the intervening years, we’ve had the great pleasure and responsibility of covering the tragedies and the triumphs that have struck this part of the world.  We’ve shared stories about the people and the places who make this a very special place to live.  CTV’s Dan MacIntosh has seen a lot of it here in the last 25 years.  And he’s going to share some of it with us now.

Dan MacIntosh’s piece then ran.  It contained clips of different news stories that CTV Atlantic had covered in the past, such as the Westray Mine disaster, ice storms, a triple murder acquittal and many others.  Towards the end of the clip, MacIntosh stated:

MacIntosh:        The most rewarding part of the job, though, over the last 25 years, has been meeting so many interesting people and sharing their stories with other Maritimers.

There were then different clips of various public figures.  That piece provided a segue to Steve Murphy’s interview with Liberal MP Rodger Cuzner, who discussed the debate surrounding local television:

Murphy:            We’ve been very pleased to have a lot of people with us here today in Stellarton as we celebrate local television here.  And one of the people who’s joined us is the Member of Parliament, the Liberal for Cape Breton-Canso, Rodger Cuzner.  I, you’re a little far from home.

Cuzner:             A little bit off-base, but with the provincial election on, we’re covering a fair amount of territory in the last number of days with the constituency week.

Murphy:            Sure.

Cuzner:             So we were in Antigonish today.  I was in, uh, uh, Glace Bay, uh, I spent the day in Glace Bay.  I was in, uh, Cape Breton West and up in Guysborough the day before that, so, uh, we’re trying to get around as best we can.

Murphy:            You’ve put the best shoes on.

Cuzner:             There we go.

Murphy:            What’s brought, what’s brought you here on this issue?

Cuzner:             Well, uh, you know, obviously we’re getting a fair amount of concern with the campaign that’s going on now to, to, uh, try to inform people, Canadians, uh, about what’s going on in the television industry.  And, uh, there’s been a, a considerable amount of change within the industry in the last number of, uh, months and really years.  And, uh, uh, it’s put our, uh, major television corporations in, in a tough p-, position.  And, uh, uh, we’ve been, uh, contacted by a great number of, uh, constituents, uh, seeking more information about the issue, uh, offering support to the, uh, to the corporations.  Not just CTV or, or –

Murphy:            Sure.

Cuzner:             – Global, but CBC.  And, uh, so I think it’s incumbent on MPs to make sure that, uh, they’re well, well-versed with it as well.

Murphy:            What would be your concerns, uh, about your voters, the people you represent and, and their interest in this, in terms of, uh, the cost, for example?  Cable, the cable industry says it will pass on these costs to consumers.  What would be your thoughts on that?

Cuzner:             Oh well, you know, the cable industry has, I, I’ve, uh, heard the arguments coming from the cable industry and, uh, you know, to, to say that it’s been traditional, it’s been historic that, uh, uh, you know, that they haven’t had to pay for this service, uh, I don’t really know if that stands up.  Again, you know, industry, so many industries have changed in the last number of years.  And, and with the, uh, uh, television companies, now they’re being, uh, pushed so much with, uh, advertising dollars.  They have to look at every opportunity here to, to, to try to, uh, sustain revenues and to, to try to, uh, so that they can continue to provide, uh, local programming options.  And, uh, that’s what the essence of this is all about.

Murphy:            Well, it’s good of you to stop by.

Cuzner:             Well, listen guys, uh, good luck with it.  Uh, obviously you’re having an impact, uh, with, with people out there.  I think education is prime now.  That’s, what we’re lookin’ at now is making sure the people, usually it’s not until there’s a crisis in an industry, whether that’s food service like listeriosis, people take things for granted and, and I think what we’re facing now is a crisis situation.  So, keep doin’ what you’re doin’.

Murphy:            Liberal MP Rodger Cuzner, good of you to come by.

Cuzner:             Thanks, Steve.

Murphy:            Thanks so much.  We are going to be, uh, speaking some more about this issue in the second half of our program tonight with, uh, CTV’s Executive Vice-President of Regulatory Affairs.  Uh, a gentleman from Newfoundland, Paul Sparkes, here after six thirty tonight.

During a commercial break, the promotional spot for the CTV Open House described above was re-broadcast.

At another point in the program, Murphy made the following statement just before a commercial break:

Murphy:            We’re going to take a brief break.  Still ahead here in the second half of our broadcast night, more on the issue of local television and what needs to be done to keep it going.  After the weather with Cindy, which is next.

Following that weather forecast, Murphy and Day again mentioned the Open House:

Murphy:            Yes, and nice weather for our Open House at CTV in Halifax tomorrow.

Day:                 Absolutely.

Murphy:            From noon ’til four.  Hope you’ll come, have some barbecue and some of, uh, yes, Bud’s famous fries one last time.  Tomorrow at twelve ’til four.  […]  But next we’ll have more on the issue of local TV and its future.

Toward the end of the program, after the major news reports had been broadcast, the newscast featured an interview segment with CTV’s Executive Vice-President of Corporate Affairs who discussed the situation surrounding local television:

Murphy:            If you’re spending any time watching television, you’ll have seen the commercials about the future of local television stations like this one.  Broadcasters like CTV are asking for what’s called a fee-for-carriage from cable and satellite companies.  That means the people who retransmit local stations like this one would have to pay a fee for doing so.  The cable industry is very strongly against this idea.  They say they will pass the fee onto their consumers.  And today cable has filed a complaint with our mutual regulator, the CRTC, accusing CTV of unbalanced and one-sided coverage of this issue.  The networks say that local television is in jeopardy because it’s losing money.  Well, joining us tonight to talk about this is Paul Sparkes, a proud son of Newfoundland and Labrador.  He is the Executive Vice-President of Corporate Affairs for CTV.  Welcome back home to Atlantic Canada.

Sparkes:           I’m happy to be here.

Murphy:            Want to ask you this, uh, Paul:  A lot of businesses are in trouble in this recession.  A lot of people are complaining about not making money.  A lot of industries are asking for help.  How much of this is really about the recession?

Sparkes:           Part of it is part of the recession.  We’ve had a, uh, an issue with our ad revenues for the last seven years.  Uh, which we’ve been telling the, uh, the government, the CRTC.  There’s been a steady decline of ad revenues.  We’re, our, our primary source, our only source of revenue is through advertising.

Murphy:            Right.

Sparkes:           Uh, when you compete against specialty networks, the internet, uh, obviously these revenues are going to be affected.  The recession has absolutely accelerated it to the point where we’re in a crisis.  And, if nothing is done about it, uh, soon, uh, I think we’re going to be just a witness to the, to the demise of local television in this country.

Murphy:            There has been a lot of very bleak talk about it.  I mean, it is described as potentially silencing the voice of local television.  How real is that?

Sparkes:           It’s very –

Murphy:            How likely is that?

Sparkes:           It is very real.  I wouldn’t be sitting here today telling you this is the m-, probably one of the most serious issues that, that we’re facing as a company.  It’s, it’s one of the most serious issues we’re facing as a country.  We may lose our local voice.  Viewers across the country could lose their connections to their communities.  It is a very serious issue and this is why we’ve, we’ve started this, uh, uh, uh, grassroots campaign across the country.

Murphy:            Mm hm.

Sparkes:           To bring the issue outside of the, uh, the hearing room of the CRTC, outside of the bubble of Ottawa, to educate, uh, viewers from coast to coast how serious it is.  We could lose local television.

Murphy:            The, the cable companies have said, and they’ve asked, and I guess I’ll ask you:  Why should they pay for a signal that is free on the air?

Sparkes:           Yeah, you can get it free.  Yeah, you could –

Murphy:            It is in the air, right here, right now.  Why, why should they pay for that?

Sparkes:           Well, you can get it from your rabbit ears, absolutely.  You can, if you have your rabbit ears, you can pick it up, you can watch, uh, I’m sure people are watching your newscast tonight, uh, without subscribing to cable.

Murphy:            Right.

Sparkes:           Uh, we don’t have a problem with that.  That, that, it’s free, it, it should remain free.  But wh-, where we have a problem is the cable companies, they take our programming, they repackage it – and you’ve heard this argument before – they sell it to the consumer, the consumer’s paying for it.

Murphy:            Right.

Sparkes:           They believe they’re actually paying for it on their bill.  Have you looked at your bill lately?  I mean, how, do you know exactly what you’re paying on your bill?  I mean, it’s, it’s not as clear as it should be, but the unfortunate part is the consumer actually thinks they’re paying for it.  And we’re saying to the cable company, enough’s enough, the free ride’s over.  It’s time to compensate the local television.  And it’s a matter of survival for us.

Murphy:            Uh, CTV owns a lot of, uh, non-local TV stations as well.

Sparkes:           Yes, yeah.

Murphy:            And they make money.

Sparkes:           We own, as you know, specialty channels.  Uh, we own the Globe and Mail.  Uh, uh, we own radio stations.  If we have to cross-subsidize, uh, uh, our businesses, uh, where does that put the rest of, of, of the business?  And, and the other important fact is, is our specialty services aren’t all owned by CTV.  We have partners.  TSN is partner with ESPN, Discovery is a partner with, uh, –

Murphy:            Right.

Sparkes:           – Discovery International.  Uh, I wouldn’t expect Rogers, uh, uh, to, uh, underwrite, uh, their wireless division, underwrite their television, uh, business, vice, or, or their cable to underwrite their wireless business.

Murphy:            Right.

Sparkes:           I mean, these, these companies, divisions have to stand on their own.  And unfortunately, conventional television has been losing money, uh, for a number of years and we are now at a crisis point.

Murphy:            Uh, in the interest of transparency, I work for our company.

Sparkes:           Yeah, yeah.

Murphy:            As you do.

Sparkes:           Yeah.

Murphy:            And, uh, it is difficult, if not impossible for us to be totally dispassionate about this.

Sparkes:           No, no, no.

Murphy:            We have been accused of unbalanced and one-sided coverage in a complaint to the CRTC.

Sparkes:           That’s right.

Murphy:            And we take those complaints seriously as a company, do we not?  What about that?

Sparkes:           Yeah.  We do.  We do take it very seriously.  As you said, people are very passionate about this issue.  Canadians from coast to coast have expressed their support and, for local television like I’ve never seen.  We have an online petition and we’re almost forty thousand, seventeen thousand e-mails –

Murphy:            Right.

Sparkes:           – have been sent to, uh, uh, Minister of Heritage.  Um, this action by cable today is unfortunate.  I look it as, at it as a, as a desperate, uh, uh, uh, move on their part.  It’s almost like they’re trying to suppress freedom of speech.  They, they’d carried on a campaign like this, uh, back in the nineties when they were trying to smear, uh, uh, satellite.  Uh, for them to, uh, uh, to come out and take this move, uh, and cry to the, uh, uh, the CRTC, I think is, uh, is, uh, a desperate move on their part.

Murphy:            Paul Sparkes, we appreciate your time.

Sparkes:           Thank you very much.

Murphy:            Welcome back to your home stompin’ grounds here.

Sparkes:           Yeah, yeah, it’s a pleasure, yeah.  Thank you.

Murphy:            Paul Sparkes is our, uh, Executive Vice-President of Corporate Affairs for CTV.

That interview was followed by a political opinion segment by CTV commentator Tom Clark from Ottawa and another commercial break.  Murphy then concluded the newscast with a reminder to viewers about the Open House.

Murphy:            We’ll see you Monday night at six.  And we also hope to see you tomorrow afternoon from noon to four at CTV on Robie Street in Halifax for an Open House with barbecue and Bud the Spud’s famous fries.  And a chance to say hello to you all.  Have yourself a good evening and a good weekend and be well.

In its response letter (quoted above), CTV Atlantic mentioned that it had broadcast perspectives from BDU representatives on two occasions, namely, in a report of May 12 and in a six-minute interview with the head of Regulatory Affairs at Rogers on May 29.  CTV sent the CBSC a copy of the May 12 report, but it had not retained a copy of the May 29 broadcast (since it was only required by the CBSC to keep copies of the challenged programs, not of any other supporting material).  The May 12 content was a news report about the fee-for-carriage debate.  The report noted that conventional broadcasters wanted a subscriber fee, and that BDUs were fighting that proposal.  The report included the statement by a representative from Eastlink Cable that was quoted in CTV’s letter, as well as statements from two other individuals who supported the local television side of the debate (a full transcript of that report can be found in Appendix A).

Complaint from the BDUs

As mentioned above, the other complaint for which the CBSC received a Ruling Request came from a consortium of BDUs.  The BDUs complained that CTV-owned stations across the country had given a biased and one-sided presentation of the fee-for-carriage debate.  The consortium originally sent their complaint to the CRTC on May 22 (the full text of all correspondence, including the appendix to the BDUs’ letter, can be found in Appendix B):

Dear Mr. Chairman,

Re:       Complaint against CTV television network and its member stations

As the Commission is aware, all of the stations of the CTV television network across Canada are currently conducting an aggressive public advocacy campaign under the slogan of SAVE LOCAL TV.

That campaign is designed to influence public opinion and to garner public support for CTV’s position on the contentious broadcasting policy issue which is often described as “fee for carriage”.

Although we, the undersigned, do not agree with the position of the CTV network and its member stations on this issue, we recognize their fundamental right to express freely their own opinions on such matters of public concern.

However, as both the Broadcasting Act and the Canadian Association of Broadcasters’ (CAB) own Code of Ethics make clear, some reasonable limits do exist to ensure that those licensed to use the public airwaves do not abuse their position of public trust with respect to the dissemination of news programming.

Parliament enshrined in Section 3 of the Broadcasting Act the requirement that all broadcasters should “provide reasonable, balanced opportunity for the expression of differing views on matters of public concern.”

The CAB Code of Ethics, at Clause 5 which deals with news programming, emphasizes that news “… shall be represented with accuracy and without bias” and goes on to stipulate that broadcasters “… shall ensure that news broadcasts are not editorial.”

Clause 5 then goes on to specify that,

(2)        News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be formulated on the basis of the beliefs, opinions or desires of management, the editor or others engaged in its preparation or delivery.  The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.

Compliance with the CAB’s Code of Ethics is, of course, one of the conditions of licence of each of the stations of the CTV television network.

Under the Broadcasting Act, a licensee’s responsibility to provide a balanced opportunity for the expression of opposing views on matters of public concern arises whenever the licensee presents one particular viewpoint in its programming.  CTV is not meeting this obligation.

The rationale for these reasonable limitations on a broadcaster’s freedom of expression in its news programming is self-evident.  As the Commission itself has noted on many occasions, radio frequencies are both a public property and a scarce resource, and persons licensed by the Commission to use these public frequencies are invested by the trust of all Canadians.

The CTV television network and its member stations across Canada have been, and continue to be, in breach of that public trust in that they have repeatedly incorporated into their local news broadcasts one-sided, unbalanced programming material as a component of the SAVE LOCAL TV public advocacy campaign.  We are attaching transcripts of several recent newscasts of broadcast stations of the CTV network which confirm our contention (see Appendix A) and can provide the Commission with further electronic evidence should this be considered necessary.

Simply put, it is wrong for stations of a national television network to abuse the public trust in their provision of local newscasts.

We are writing to request the Commission to take urgent action to ensure that these repeated violations of the Broadcasting Act and the CAB Code of Ethics are terminated immediately.

This matter is too urgent and too important to await a lengthy investigation by the Canadian Broadcast Standards Council.

We are, therefore, respectfully asking the Commission to exercise its plenary discretion and authority in matters of this kind and to take immediate corrective action.

The letter was signed by an executive from each of Rogers, Cogeco, Bell, Eastlink, Telus and the Canadian Cable Systems Alliance.  The letter set out the group’s concerns and an appendix to that letter provided specific examples and some transcripts.  In a number of cases, the BDUs did not identify the date and time of the broadcasts, but in others it did.  It is important to note that specific dates and times are always necessary for any regulatory analysis of content, whether conducted by the CBSC or the CRTC.

Despite the BDUs’ specific request that the matter not be treated by the CBSC, the CRTC forwarded the complaint to the CBSC and sent the following letter to the BDU consortium:

This is in response to your letter of 22 May 2009 claiming that CTV is not complying with the provisions of the Broadcasting Act and the CAB Code of Ethics.

You request that the Commission take immediate action, and submit that this matter is too urgent to await an investigation by the Canadian Broadcast Standards Council (CBSC).  The letter refers to Section 3(1)(j) in the Broadcasting Act regarding the provision of differing views on matters of public concern, and also to Section 5 of the CAB Code of Ethics.

As you know, the CAB Code of Ethics is administered by the CBSC.  The Code also includes in clause 7 the concept of “presenting all sides of a public issue”.  The Commission considers that the issues raised in your letter should be addressed by the CBSC in light of its applicable Code.

Furthermore, the Commission has consulted with the CBSC and has been assured that this matter will receive its expeditious consideration, with a decision expected by September.  Therefore, in the interests of efficiency and promptness, and consistent with its usual practice, the Commission is referring this matter to the CBSC for deliberation.

Upon receipt of the complaint from the CRTC, the CBSC dealt with it pursuant to the Council’s customary procedure.  For a start, it should be noted that it took considerable time and effort to determine exactly which stations and broadcasts the BDUs were referring to, as well as to obtain e-mail contact information for all of the BDU representatives (such information had not been included in the original complaint).  Ultimately, the BDUs designated one individual to be their point person.  In an e-mail of June 12, sent to that individual, the CBSC explained that, in accordance with its normal practice, it was unable to pursue the BDUs’ complaints about those broadcasts for which the consortium had failed to specify a date and time.  Since the CBSC, like the CRTC, depends on recordings of challenged programming to be in a position to assess complaints, such specific information is primordially important.  In any event, the CBSC went on to explain that it would pursue the complaints regarding those broadcasts for which it had sufficient information to order recordings from the designated stations.  In addition, in accordance with the CBSC’s customary procedure, it informed the BDU consortium that it would have 14 days following receipt of the broadcaster’s response to file its Ruling Request in the event the group was dissatisfied with the broadcaster’s response.

Although numerous CTV stations in both the Atlantic and Ontario regions were identified in the complaint, CTV’s corporate office sent a single response to the BDUs on July 3 which, in principle, addressed all of their concerns:

Dear Sirs:

CTVglobemedia Inc. (“CTVgm”), on behalf of its over-the-air television stations CJOH-TV Ottawa, CKVR-TV Barrie, CKCO-TV Kitchener, CFTO-TV Toronto, CKCW-TV Moncton, CJCH-TV Halifax and the Atlantic Satellite Network (“A Atlantic”), is pleased to respond to the above-referenced complaint.  This complaint was originally filed with Canadian Radio-television and Telecommunications Commission (the “Commission”), which referred the matter to the Canadian Broadcast Standards Council (“CBSC”), which, in turn, sent it to us to respond.

Background

In early May, CTVgm launched a promotional campaign designed to raise awareness of the issues facing Canada’s local television stations.

Initially, the campaign took the form of a series of promotional spots that aired across CTVgm’s local over-the-air television stations and specialty services.  These spots included statements from on-air personalities from CTVgm’s channels about the crisis facing local television stations or testimonials from viewers, politicians or prominent citizens about the importance of local television.  These spots were scheduled to run throughout the day in all types of programming.  In addition, the spots directed viewers to a website where they could obtain additional information, sign a petition in support of their local television station or send a letter to the Minister of Canadian Heritage encouraging the Government to move quickly to help local television stations.

After merely a few days of airing the promotional spots, tens of thousands of Canadians had already voiced their support for local television by either signing our petition or sending a letter to the Government.  As a result, our stations and other licensees (such as CBC Television, CBC Radio and TV Ontario and even Rogers Broadcasting Limited’s radio stations) began to devote coverage to the issue as it was quickly becoming a major national news story.

As the campaign developed momentum, numerous community groups and charitable organizations rallied behind their local television stations.  Politicians across the country at all levels also became involved, fielding calls from concerned citizens and responding to thousands of letters and e-mails. For example:

The community and political involvement in markets such as Montreal, Toronto, Winnipeg, Regina, Saskatoon, Edmonton, Calgary, Vancouver and Victoria was equally high.

The campaign culminated with a series of open houses at CTVgm’s local television stations across the country, where approximately 30,000 people turned out to show their support, meet their favourite television personalities and get a station tour.  Numerous politicians at the local, provincial and federal level attended these open houses.

The campaign officially ended on June 1st, 2009 when our petition (which was signed by 50,000 Canadians) was sent to the Minister of Canadian Heritage.

The Complaint

In your complaint you have argued that:

In the Appendix to your complaint, you have included a description of certain programming that ran on eight of our stations.  The CBSC has excluded Items 1 (CHRO-TV Ottawa) and 3 (CTV Northern Ontario) as you did not provide sufficient detail.  Our response to your concerns with the other programming in question is outlined in detail below.

CTVglobemedia’s Stations Were in Full Compliance with Clause 5 of the Code

Clause 5 of the Code states that:

“It shall be the responsibility of broadcasters to ensure that news shall be represented with accuracy and without bias.  Broadcasters shall satisfy themselves that the arrangements made for obtaining news ensure this result.  They shall also ensure that news broadcasts are not editorial.

News shall not be selected for the purpose of furthering or hindering either side of any controversial public issue, nor shall it be formulated on the basis of the beliefs, opinions or desires of management, the editor or others engaged in its preparation or delivery.  The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.

Nothing in the foregoing shall be understood as preventing broadcasters from analyzing and elucidating news so long as such analysis or comment is clearly labeled as such and kept distinct from regular news presentations.  Broadcasters are also entitled to provide editorial opinion, which shall be clearly labeled as such and kept entirely distinct from regular broadcasts of news or analysis.

Broadcasters shall refer to the Code of Ethics of the Radio and Television News Directors of Canada (“RTNDA”) for more detailed provisions regarding broadcast journalism in general and to the CAB Violence Code for guidance with respect to the depiction of violence, graphic reporting of delicate subject matter or the use of explicit language in news and public affairs programming on television.”

As noted above, you have stated that “[c]ompliance with the CAB’s Code of Ethics is, of course, one of the conditions of licence of each of the stations of the CTV television network.”  We should note at the outset that none of CTVgm’s stations have a Condition of Licence requiring adherence to the Code.  The Code is administered by the CBSC and compliance with it is a condition of CBSC membership.

The programming segments you have highlighted fall into two categories – promotional spots for the “Save Local TV” campaign and news stories about the campaign that formed part of the news programming on the particular station in question.

With respect to the former (Items 7a and 8 in the Appendix), these are not covered by Clause 5 as they are clearly not news programming, nor does any other section of the Code prohibit their broadcast.  Ironically, the Canadian cable and satellite industry ran a similar campaign in partnership with broadcasters a few years ago to influence Government to introduce stronger legislation relating to signal theft.

In terms of the news stories that aired, in our view, these were entirely consistent with the Code.  In your complaint, you have specifically referenced the second paragraph of Clause 5.  As highlighted above, the second part of this paragraph states that:

“The fundamental purpose of news dissemination in a democracy is to enable people to know what is happening, and to understand events so that they may form their own conclusions.”

[Emphasis added]

This is exactly what our news stories did in fact do.

The following is a summary of the news stories that are the subject of this complaint:

As outlined above, the “Save Local TV” campaign wasn’t covered by our stations because it was a CTVgm initiative.  It was covered because it was a legitimate news story.  Each of the stories highlighted above were fully consistent with the principles outlined in Clause 5.  They were not biased and they informed viewers of an important matter of public concern.  Furthermore, where editorial was provided, it was not the reporter or anchor providing it, it was the person being interviewed.

In addition, many of the segments you have referenced simply mention the open houses or rallies the stations hosted.  Nothing in Clause 5 prevents stations from airing this information and, in fact, they do so every day in the form of community calendars.

Finally, it is important to note that, contrary to your assertion and consistent with Clause 7 of the Code, CTVgm’s stations made significant efforts throughout this campaign to ensure that a balance of information was provided.  The following is a sample of the various segments that ran on our stations that outlined the cable and satellite side of the local television debate:

We should also highlight that CBSC has established, as a general rule, that “balance in dealing with a controversial public issue may be achieved through the overall programming of the broadcaster.”1  CTVgm took great care to ensure this occurred.

Section 3 of the Act

The final aspect of your complaint deals with Section 3 of the Act.  You have argued that the above-referenced programming segments are in violation of the section of the Act that states that broadcasters should “provide reasonable, balanced opportunity for the expression of differing views on matters of public concern.”

While the Act is not specifically within the mandate of the CBSC, we would like to note that the section you have referenced was removed from the Act in 1991.  In the current version, the word “balanced” has been dropped.  Furthermore, this section refers to the programming provided by the entire system, not just by one licensee.  Section 3(1)(i)(iv) in the current Act states that the programming provided by the Canadian broadcasting system should “provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern.” As outlined above, CTVgm’s stations fully complied with this requirement.

Conclusion

While you are entitled to your views, we respectfully disagree with the positions outlined in your complaint.  As is evident from the foregoing, the conduct of CTVgm’s stations during the “Save Local TV” campaign did not in any way violate the Code or the Act.

1 CFYI-AM re The Touch of Health (CBSC Decision 99/00-0720, October 12, 2000).

CTV also sent the CBSC 27 examples of broadcasts on which the fee-for-carriage and “save local television” debates were discussed, from across the range of CTV-owned stations.  That package of recordings did not, however, precisely match the bulleted list provided in the immediately preceding CTV letter.

As is the case with every CBSC complainant, there is a period of two weeks within which dissatisfaction with the broadcaster’s response must be filed, in order to trigger the CBSC’s customary adjudication process.  This point, as was noted above, was also made in the letter to the BDU consortium’s point-person.

For whatever reason, the BDUs did not file a Ruling Request within the required time frame, so the CBSC assumed that the BDUs had been satisfied with CTV’s reply.  It was not, in fact, until more than sixty days after CTV’s response, in early September, that an inquiry from a BDU representative about the state of the complaint resulted in the revelation that there had apparently been some confusion on the part of the BDUs.  At that time, the BDU consortium explained that, because the CRTC Chairman’s letter had indicated that a CBSC decision would be released in September, the BDUs had paid no attention to the CBSC’s clearly-stated requirement to file a Ruling Request.  The CBSC and the BDUs sorted out this misunderstanding, the CBSC re-opened the file, and the BDUs filed their Ruling Request, eleven weeks after the broadcaster’s response, on September 18, accompanied by the following letter:

On behalf of Rogers Communications Inc., Bell Canada, Cogeco Cable Inc., EastLink, Canadian Cable Systems Alliance (CCSA) and Telus Communications Company, this letter is to request a ruling by a CBSC Panel in the above-referenced complaint.  We make this request on the basis that we are dissatisfied with CTV’s response to our complaint.

We apologize for the lateness of our request and recognize that under your procedures, it should have been submitted to you by July 17, 2009.  It is due to the fact that we received CTV’s response to our complaint on the same date as a letter from CRTC Chair, Mr. Konrad von Finckenstein, informing us that he had referred our complaint to the CBSC and had been assured that we would receive an expeditious ruling by September.  As a result, it was not clear to us that we were obliged to actually make a request for a ruling in order for a CBSC Panel to make a determination in this matter.

Given that CTV and its ‘A’ channel affiliates, along with Canwest Global and CBC, has recently launched a new “Local TV Matters” campaign, we appreciate your accommodation of our request.  We believe a ruling in this matter is crucial to ensure that this and any future campaigns are conducted in full compliance with the CAB Code of Ethics.

With respect to the BDUs’ concerns about CTV’s Atlantic stations, in the appendix to their initial letter, the BDUs identified the station only as “CTV Atlantic”.  There are actually four CTV stations that go by the name “CTV Atlantic”:  CJCH-TV Halifax, CJCB-TV Sydney/Cape Breton, CKCW-TV Moncton and CKLT-TV Saint John.  Sometimes the programming airing on those stations is the same and sometimes it is not; the latter is particularly true in the case of the local newscasts.  The CBSC had originally asked the BDUs for clarification with respect to which CTV Atlantic station they had meant.  In an e-mail back on June 3, the BDU contact person indicated that it was the Moncton station, so that is the station from which the CBSC ordered the relevant recordings.  The content did not, however, match precisely the content that the BDUs had transcribed in their letter.

The BDUs’ concerns also related to content broadcast on Ontario-based CTV-owned stations, namely, CJOH-TV (CTV Ottawa), CKCO-TV (CTV Southwestern Ontario), CFTO-TV (CTV Toronto) and CKVR-TV (‘A’ Barrie).  A description and transcripts of the relevant content on all of the above-mentioned Atlantic and Ontario stations are set out below (more complete transcripts are available in Appendix A).

CKCW-TV (CTV Atlantic, Moncton)

The first date and time of a CTV Atlantic broadcast identified by the BDUs was a Live at 5 broadcast of May 20.  A commercial break during the program (and again during the CTV News at Six program that followed) included the promotional spot for the Open House described above starring Steve Murphy and Liz Rigney.  Later in Live at 5, coming out of a commercial break, the camera zoomed in on a sign outside a Dartmouth Dairy Queen restaurant that read:

Support our Local CTV Open House

Sat 1 to 4

Host Bruce Frisko then commented:

Frisko:  Well, our friends in the community are getting behind CTV’s Save Local Television campaign.  This, uh, sign in support is outside the Dairy Queen restaurant on Main Street in Dartmouth.  You can find out more information about, uh, our effort and sign a petition asking for fee-for-carriage at Save Local TV, er, SaveLocal.CTV.ca [URL appears at bottom of screen].  And we want to thank our friends over at Dairy Queen in Dartmouth for, uh, helping us get that message out there.

The second broadcast identified by the BDUs was a May 22 newscast.  The content did not match that described by the BDUs and was seemingly from May 21 rather than May 22.  In any event, that newscast contained a retrospective similar in style to those described above from the CJCH-TV broadcasts, but highlighting different stories.  The anchor introduced the segment:

Anchor: CTV’s been taking pictures and telling stories from Saint John for just about forty years and over that time, uh, we’ve witnessed countless unforgettable images and heard lots of stories of triumph and tragedy.  With a look back at some of that, here is CTV’s Mike Cameron.

Following the retrospective, the anchor concluded the broadcast by reminding viewers about the Open House:

Anchor: And coming up, tomorrow both Live at 5 and the six o’clock news will continue their broadcast to save local TV.  They’ll be coming live from the Museum of Industry in Stellarton, uh, Nova Scotia.  And certainly on Saturday, come in here to our Open House on Robie Street and check it out.

Details about the next day’s broadcast and the Open House appeared in a graphic on screen with an image of a life preserver.

ASN (‘A’ Atlantic)

The BDUs also complained about the Save Local TV promotional spots that aired on ‘A’ Atlantic (formerly known as ASN).  The BDUs identified a promo during the May 21 episode of the ‘A’ morning show called Breakfast Television.  There was also one other, different promo on that episode that was not identified by the BDUs.  That promo featured the CEO of the Moncton YMCA expressing his support for local television:

Hi, I’m Zane Kortyko, CEO of the YMCA of Greater Moncton.  And I support local television.  Without the support of local television, our capital campaign for a new building would not have been as successful.  Local television helps mobilize the community.  Local coverage gives the community an opportunity to understand who we are.  Continue to support local television.  It is so important.

The CEO’s name initially appeared in the bottom right corner, but was then replaced with the URL for the website SaveLocal.ctv.ca.  The promo concluded with a black screen featuring the words “SaveLocal.CTV.ca.  Before local television is silenced forever.”

The promo specifically mentioned by the BDUs featured the Breakfast Television hosts:

Jayson Baxter [in park]: BT is privileged to be a part of your life.

Crystal Garrett [outside beside CTV News truck]:             We’re proud to bring you the news and issues that are important to you.

Cyril Lunney [inside, standing beside wall with framed drawings and posters]:      And to support hundreds of community groups.

Maria Panopalis [outside on street]:       But our future is threatened because cable and satellite companies are broadcasting our station and charging you.

Baxter [on street]:          In return, we receive nothing.

Lunney [in BT studio]:    As they make record profits, we face a financial crisis.

Garrett: To survive, we need your voice.

Panopalis [in park]:        Go to SaveLocal.CTV.ca to help.

The words “Save Local Television” then appeared at the bottom of the screen.

CJOH-TV (CTV Ottawa)

With respect to CJOH-TV, it was the 6:00 pm CTV News at Six newscast of May 20, 2009 that the BDU consortium identified.  During a commercial break at 6:10 pm, a “Save Local TV” promotional spot aired.  The voice-over narration of that promo was as follows:

For nearly fifty years, CTV Ottawa has kept you informed about events in your home town.  We’ve been the leaders, not only with your local news and programming, but also our commitment to this community.  But now, the future of local television, including this station, is at stake.  Contact your Member of Parliament to tell them [sic] that local TV is important to you.  Get the facts at SaveLocal.CTV.ca before local television is silenced forever.

The visual component of the promo consisted of images of CJOH broadcasts over the years, followed by white words on a black background that read “The future of local television broadcasting, including this station, is at stake.” “Contact your MP and tell them that local TV is important to you.” “CTV savelocal.ctv.ca 613-224-1313.”

Later in the program, coming out a commercial break, there was a bumper segment featuring Suzanne Dodge, the mayor of the nearby town of Prescott.  There was a graphic of a television set displaying the CTV logo surrounded by a life preserver and the website address savelocal.ctv.ca was displayed on screen.  Dodge said:

Local news for a small town like Prescott is extremely important because we, we need the passion, we need the, the connectability that people have, uh, with, with a local TV station like CJOH to, to bring our message, uh, for, not only business, but the community at large.  Our message needs to get out there and we need the passion that, that local TV brings to a small town and gives to a small town.  Because, without that, uh, our, our community is, is, is lost.

That was followed by a scene of an empty television studio and a voice-over said “Without local news, we all lose.”

Then at 6:27 pm anchorwoman Carol Anne Meehan introduced a report in the following terms:

We’ve been telling your stories about your towns and cities for almost fifty years.  Now, as you’ve heard, local television is in crisis.  CTV’s Norman Fetterley tells us why local news, your news really matters.

Fetterley’s report began with a scene of studio preparing to go to air and Fetterley’s remarks:

Fetterley:          It’s a drama that opens in our home and then plays in yours:  local news.  [Scene of anchors Max Keeping & Carol Anne Meehan beginning a newscast]  Story-tellers from the time of Homer have known that events a world away will move us less than events on our street or in our city.  [Clips of various local news stories]  And so your stories have been our stories, both small and big.  Remember 1998’s ice storm?  Thousands of us felt its effects, as we did when the lights went out in the 2003 blackout.  Or the bus strike of last winter.  [Clip of John Hua looking at computer monitors showing congested roads]  And today’s trial of Ottawa’s mayor.  [Clip of reporter Catherine Lathem reporting on trial of Ottawa mayor].  Doctor Michael Pilon is an Ottawa dentist.  [Scene of Pilon working on someone’s teeth]  When he retired from the military, he and his family settled here, attracted by the image of Ottawa reflected on CTV News.

Interview with Pilon:       One of the things was CTV evening news, believe it or not as, um, we, we felt we were part of it.  Not just living here, but part of a nice community and this is the way the community is and it should, hopefully, continue that way.

Fetterley:          Chris Waddell is a veteran reporter who now teaches at Carleton University.  He says a jumble of voices will tell us the national and international stories.  Local is different.

Interview with Waddell:   It’s the local stories that have an impact on people because it may change how you get to work one day, it may change what’s happening in your community.  And it also is, local issues are issues where you can change things too.  Where groups of people can get together and actually organize and change something.

Fetterley:          And many of your friends and neighbours agree that our strong, local voice must survive.

The report included a series of comments from citizens who had been interviewed on the street:

Woman #1:       I’m new to the city, so it tells me what’s going on where and very precise, very informative.

Man #1:            Oh, anything to do with Ottawa.  You know, the traffic scene, the weather scene in the morning.

Man #2:            Feel-good stories and the positives about the city.

Woman #2:       I like to see what’s going on in the city.  Or I like to hear about what’s going on in different neighbourhoods.

Man #3:            Well, since I’m paying taxes in Ottawa, I like to know what they’re doin’ with my money.

Woman #3:       I love the fact that they, uh, spend a lot of time on community events.

Those on-the-street interviews were followed by a scene of anchors Max Keeping and Carol Anne Meehan at the anchor desk.

Fetterley:          We’re proud to say that local news makes us part of your family and you of ours.  [Scene of director cueing conclusion of newscast].  Norman Fetterley, CTV News.

The report concluded and Meehan herself read another short report:

Meehan:            Canada’s largest technology association says it supports CTV and local television news.  The Canadian Advanced Technology Alliance plans a rally this Friday in a virtual world called Second Life.  [Screen capture of animated image from Second Life of CATA press release & woman holding CTV sign outside Parliament Buildings]  Second Life is used by fifteen million people living virtual lives with electronic avatars like this one.  John Reid, head of the tech alliance says it would be a disaster for tech firms to lose access to local news [close-ups of words in press release].  The group also says cable and satellite firms should pay a fee for access to TV content.  The virtual rally, this Friday runs from noon until 1 pm.  [Close-up of rally information sign in Second Life]

Going into the next commercial break, another bumper featured another local mayor:

Bill Gooch, North Grenville Mayor:          One of the most important aspects of local television is its benefit for economic development.  Uh, CTV comes out here and does a story on our community, it does a story on Merrickville, it does stories on the region.  That brings people out to see our community.  It brings, uh, it brings tourists who spend money, it creates jobs.  It creates an awareness of where our community is relative to the city.  It also, for our community, it’s, it’s, uh, served, uh, a tremendous asset during things like the ice storm in keeping people aware of what’s happening and, and how events are unfolding.

There was then a scene of an empty television studio and, again, the voice-over stated “Without local news, we all lose.”

At 6:38 pm, there was a promo for the upcoming Open House at the CTV Ottawa studio.  The date and time of the Open House appeared at the bottom of the screen while the visuals and dialogue were as follows:

Keeping [in studio]:       On May 23rd, CTV Ottawa invites you to a special Open House.

Meehan [walking down hallway]: Come on in and meet the people who bring local television into your home.

Anchor Leanne Cusack [getting out of CTV van]: Take a behind-the-scenes look.

Anchor Michael O’Byrne [in studio]:        And find out what it takes to run a local television station.

Weatherman J. J. Clarke [at door of CTV trailer]: On May 23rd, we’re opening our doors to you.

Voice-over:       Local television provides a voice for our community.  On May 23rd, drop by CTV Ottawa and tell us why local television is important to you.  Send a message that local matters.

The television screen then went black and the date, time and location of the Open House appeared in words on the screen.  The same Open House promo was rebroadcast at 6:55 pm.

CKCO-TV (CTV Southwestern Ontario)

The challenged CKCO-TV (CTV Southwestern Ontario) content consisted essentially of an interview with the station’s own Vice-President and General Manager Dennis Watson that aired on CTV News at Noon on May 21, 2009 at 12:00 pm.

Immediately prior to the interview, CKCO-TV broadcast a portion of one of their “Save Local TV” promotional spots.  The spot featured the Executive Director of the Food Bank of Waterloo Region:

My name’s Wendi Campbell and I’m the Executive Director of the Food Bank of Waterloo Region and local television is essential to the work that we do in our community to provide food to those in need.  [Split screen clip of male news anchor and female reporter; “SaveLocal.CTV.ca” appears at bottom of screen; close-up of female reporter; scene of people working in food bank warehouse.]  If we did not have –

The promo then faded out and anchor Kyle Christie began his interview with Watson.  The interview proceeded as follows:

Christie:            Perhaps you’ve seen these ads telling you local television, including the station you’re watching right now, are at risk of shutting down across the country.  Well, how serious is this?  To find out, we welcome the vice-president and general manager of this station, Dennis Watson.  Dennis, this is a little bit different.  [Watson chuckles]  Normally you’re asking me the questions.  But we’ll, we’ll flip things over a bit.  How serious is this?

Watson:            Uh, it’s a very serious issue.  The over-the-air conventional television business basically last year broke even.  Uh, that’s a drop of a quarter billion dollars in operating profit in two years and we suspect that this year that we’re in, the industry will lose about two hundred million dollars.

Christie:            And let’s explain to people exactly what we are looking for.  As we’ve said in these promos, it’s not a bailout that we’re looking for from the government –

Watson:            Yep.

Christie:            You’re looking for some change in the way this all works.

Watson:            The Canadian broadcasting system, uh, over the years has evolved to this point.  And the point is that the cable and satellite portion of the industry are taking the programs that we pay the exclusive rights for and distribute them holtus poltus [sic] throughout the country.  So, for instance, in Southwestern Ontario, that’s the geography that we serve, one third of the tuning to CTV programming, the programming that we carry, is on CTV stations from Regina and Halifax and Toronto and Winnipeg.  So that means we’ve lost a third of our inventory.  We no longer have enough inventory to, to create enough revenue to pay our bills.  And some say that, you know, when the recession’s over that this will pass.  My response to that is:  Are you saying then that the one third of the people who aren’t watching us anymore, who are watching CSI and Law & Order on these other CTV stations are going to turn back to us when the recession’s over?

Christie:            Right.  And I think a good point to make here too is that people may not realize we, as in CTV Southwestern Ontario, we pay for the Grey’s Anatomy.  It’s not CTV, the big CTV paying and just distributing it.  We pay for that to show it to people in Southwestern Ontario, right?

Watson:            Correct.  Yeah.

Christie:            So if people are watching it in, in Winnipeg, then there’s a bit of a loss.

Watson:            Yes.  Yeah.  Tho-, we pay our percentage to the CTV network for the rights to air those shows exclusively in this market.  And every time the cable companies or the satellite companies bring in a distant signal, they’re destroying our program rights.  And that’s basically what we’ve been saying to them.  You’ve put us in a position where we can no longer exist on advertising revenue alone.  You’ve created this problem.  You should help us solve it.

Christie:            And it costs, I believe, is it ten million dollars a year just to put on the, the local news portion?

Watson:            Correct.  To operate this station, it’s ten million dollars a year.  That’s for the transmitters and the staff and to do the local news.

Christie:            And half of that goes to Dave MacDonald.

Watson:            [Laughs]  Actually, it’s three quarters.

Christie:            Three quarters?

Watson:            He wishes.

Christie:            Is that what it is?  Well let’s tell everyone at home what they can do.

Watson:            Uh, they can write to their, uh, Member of Parliament.  They can write to Heritage Minister James Moore.  They can write to the Prime Minister.  They can do this all via e-mail.  So more importantly, they can have a little fun and they can come out this Saturday to our Open House and, uh, we’ll be here to show them through the building, show them how we operate and we’ll also show them how they can support us at that time.

There was then a graphic that provided information about the date, time and location of the Open House on May 23 at CTV Southwestern Ontario, as well as the website address for savelocal.ctv.ca.  Christie and Watson continued their conversation:

Christie:            And you’re seeing that right there.  This Saturday, May 23rd, 10 am ’til 2 pm.  For more information, you can go to either of those websites: swo.ctv.ca.  And you can see the banner at the top there that will direct you to SaveLocal.CTV.ca.  There’s a petition there that you can sign online.

Watson:            That’s correct.  Yep.

Christie:            And also all the e-mail addresses that you need and, uh, addresses to mail your letters.  And, and e-mail your Members of Parliament.

Watson:            And remember, if you do mail your letter, you don’t have to put a stamp on it ’cause postage to your Member of Parliament is free.

Christie:            There you go.  And now you know.  Dennis, thank you very much.

Watson:            Thanks, Kyle.

Christie:            We’re looking forward to Saturday.  It’ll be great to, to meet with the people who watch us every day.

Watson:            We’ve done this a couple times before and it will be a lot of fun.

Christie:            It will be.  Thanks, Dennis.  Now back over to Nancy.

CFTO-TV (CTV Toronto)

On CFTO-TV (CTV Toronto), it was information provided by the various news anchors about the Open House that concerned the BDU consortium.  In each of its three main newscasts (at noon, at 6:00 pm and at 11:30 pm) on May 20, the CTV Toronto anchors talked about the upcoming Open House in similar terms:

We’d like to tell you now about an Open House that we’re holding here at CTV Toronto and you and your family are invited.  It’s going to be a fun day with a serious message.  For almost fifty years, CTV Toronto has been supporting our community.  We’ve been there for you, telling the stories that matter the most and we’ve helped make our community a better place to live.  Now, we’re asking for your support.  Local television stations across Canada face serious issues and our future is in jeopardy.  The reality is, we aren’t compensated by the cable and satellite companies who take our programming.  To learn more about how you can help and to get a behind-the-scenes look at our studios, we invite you to join us for a special CTV Open House on Saturday, May 23rd.  Go to our website at CTVToronto.ca to find out more.  Or you can call us at 416-384-4700.  We hope to see you next Saturday.  Many of your favourite CTV personalities will be here, so don’t forget your camera.

On each of the newscasts, those comments were followed by an image of the CTV News 50 Years logo, images of old logos and station vehicles, images of CTV reporters covering Toronto stories and then the details about the Open House.

CKVR-TV (‘A’ Barrie)

The BDUs identified a news report aired during the ‘A’ News newscast at 11:00 pm on May 19, 2009.  The report in question was primarily about politician Justin Trudeau’s visit that day to a Midland high school and Mr. Trudeau’s efforts to get young people engaged in the political process.  At the end of the report, ‘A’ Barrie anchor Lance Chilton noted that Trudeau also commented on the situation of local television:

Chilton: And while he was in Midland, Trudeau also voiced his support for local television.  CTV-owned stations, including this one, are calling for changes to CRTC rules, saying it’s time for cable companies to pay for our signals, something they already do for specialty channels.

interview with Trudeau:   Local television, local radio, local media is the voice of people in a given place.  And nobody wants to only get their news from Toronto.  Nobody only want-, and the, the idea that we have value as citizens is linked to our ability to express ourselves.

That segment was followed by a video clip of local Canadian Idol contestant Drew Wright singing and playing guitar while sitting beside a television screen displaying the ‘A’ Morning program logo.  Chilton then stated:

Canadian Idol finalist Collingwood’s own Drew Wright will be performing at our Save Local Television rally at Centennial Park.  That happens this coming Saturday, May 23rd.  We’ll be there live for our six o’clock news broadcast, so drop by and say hello.  That’s, again, Saturday the 23rd.  It starts at five thirty, goes ’til seven thirty at Centennial Beach in Barrie.  If you want more information, please check our website, ATV.ca.

The words “Save Local Television ATV.ca” appeared at bottom of screen.

THE DECISION

The Atlantic and Ontario Regional Panels examined the complaints under the following provisions of the Radio Television News Directors Association of Canada (RTNDA – The Association of Electronic Journalists) Code of (Journalistic) Ethics and the Canadian Association of Broadcasters’ (CAB) Code of Ethics:

RTNDA Code of (Journalistic) Ethics, Article 1 – Accuracy

Broadcast journalists will inform the public in an accurate, comprehensive and fair manner about events and issues of importance

CAB Code of Ethics, Clause 5 – News

CAB Code of Ethics, Clause 7 – Controversial Public Issues

Recognizing in a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of broadcasters to treat fairly all subjects of a controversial nature.  Time shall be allotted with due regard to all the other elements of balanced program schedules, and the degree of public interest in the questions presented.  Recognizing that healthy controversy is essential to the maintenance of democratic institutions, broadcasters will endeavour to encourage the presentation of news and opinion on any controversy which contains an element of the public interest.

The Panel Adjudicators read all of the correspondence and reviewed every minute of each of the challenged broadcasts applicable to their Region (i.e. Ontario or the Atlantic Region) for which the individual complainant and the BDUs had provided a specific date and time (see the more detailed discussion and explanation above under the heading “Complaint from the BDUs”).  Both the Panels conclude that none of the broadcasts violated any of the aforementioned Code provisions.

The Panels also consider it essential to point out that the assertion by the BDU consortium in its letter of May 22 that “Compliance with the CAB’s Code of Ethics is, of course, one of the conditions of licence of each of the stations of the CTV television network” is incorrect.  No CTV station, indeed no Canadian broadcaster, is obliged to adhere to Clause 5 or any other clause of the CAB Code of Ethics as a CRTC-mandated Condition of Licence.  All broadcaster members of the CBSC are obliged to respect the terms of the Codes the CBSC administers as a part of their membership commitments, but that is a very different matter; the CBSC has no authority to impose formal Conditions of Licence.

It should also be noted that, in that same letter, the BDU consortium stated that

Parliament enshrined in Section 3 of the Broadcasting Act the requirement that all broadcasters should “provide reasonable, balanced opportunity for the expression of differing views on matters of public concern”.

That observation is also wrong.  That provision of the Broadcasting Act, formerly Sec. 3(d), was replaced in 1991 by what is now Sec. 3(1)(i)(iv), which does not include the word “balance”, and which bears significant substantive similarities to the Controversial Public Issues Clause of the CAB Code of Ethics.  The current Broadcasting Act section seeks “a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern.”

A Preliminary Matter: Provision of Tapes to Complainants

The member of the public who complained requested that the CBSC provide him with a copy of the broadcast for his own review because, he explained, CTV Atlantic had refused to provide him with one.  Although this did not become an issue of central importance once the CBSC wrote the complainant to explain its policy of not furnishing tapes to complainants, the Panels consider it relevant to explain that policy in the event that it may be of assistance to future complainants.  Since this very issue was dealt with in some detail in CFNY-FM re a “Spencer the Cripple” segment on the Dean Blundell Show (CBSC Decision 08/09-0650, June 25, 2009), the Panels refer to the words of the Ontario Regional Panel in that decision:

First, the CBSC wishes to make clear that there is nothing capricious or unco-operative in either its, or the broadcaster’s, practice of declining to provide tapes or recordings of programming to complainants.  On the most basic level, the issue is the combination of efficiency and economy.  The Council receives in the vicinity of two thousand complaints each year.  If each and every complainant, or even a significant proportion (half? a quarter? even a tenth?) of them, sought such a recording, the burden for both the broadcaster and the CBSC would be considerable.  Moreover, there is the risk that persons simply wishing the tape of a program might formulate a complaint, knowing that this would hypothetically entitle them to a recording of a program about which they had no real complaint whatsoever.  And there exist commercial enterprises that supply such recordings for a fee.  The CBSC has no wish to be in competition with them or to supplant their business interests.  There is also a concern about the potential violation of copyright in the recorded material in the event of distribution beyond the needed regulatory purpose associated with the CBSC’s mandate.

Second, and, in some respects more importantly, the complainant suffers no prejudice on account of lack of access to the original recording in the formulation of her or his complaint.  Because the CBSC itself, and perforce its Adjudicators, in the review of every complaint have the fullest access to the original broadcast matter, the Panel decisions are made with reference to the actual broadcast, and not solely on the formulation by the complainant, who does not have the original content at hand.  This is not to say that the Panel is not frequently well-informed by complainant characterizations of issues, but rather that a poorly-argued case (whether due to ineffective argument or the absence of the underlying electronic evidence of the broadcast) will not weaken the possible outcome of the adjudication.  Moreover, as a further check-and-balance, and as a reflection of the transparency of the CBSC process, a description or, where feasible, a transcription of the challenged program will be provided as a part of the decision itself.  This leaves assiduous complainants in the position of being able to determine the extent of their agreement, or disagreement, with the Panel decision.

In sum, it is clear that members of the public wishing to have recordings of programs for whatever reason should obtain these from commercial suppliers, which they can usually do if their requests are made on a timely basis (and the broadcasters are covered by the commercial suppliers; not all broadcasters are).  For the reasons cited above, the Panels consider that neither broadcasters nor the CBSC can be expected to supply these.

A Preliminary Matter: Differentiation of Content

The specific broadcasts about which the complainants raised concerns were not all of a single type.  There were news stories, an afternoon magazine-format show, and promos.  As could reasonably be expected, the rules applicable to each differ.

Those broadcasts that are promos or commercials are by definition selling something, whether a good, a service, or an idea.  It cannot be expected that such pitches will be objective, unbiased, detached, or laid back.  In reviewing all of the broadcast segments complained of, the Panels dealt with the promos with that weighted expectation.  The Panels were not surprised.  The promos, which included local hosts and reporters (Steve Murphy, Liz Rigney, Jayson Baxter, Crystal Garrett, Cyril Lunney, Maria Panopalis, Max Keeping, Carol Anne Meehan, Norman Fetterley, Leanne Cusack, Michael O’Byrne, Lance Chilton and J. J. Clarke), local dignitaries (Moncton Mayor George LeBlanc, Fredericton City Councillor David Kelly, high school broadcasting teacher George Gregory, Moncton YMCA CEO Zane Zortyko, Prescott Mayor Suzanne Dodge, North Grenville Mayor Bill Gooch, Waterloo Food Bank Executive Director Wendi Campbell) were not subtle.  That the foregoing individuals were all supportive, even enthusiastically supportive, of the “Save Local TV” campaign, was of course expected.  That said, their partisan approach in a promotional context creates no breach of any of the foregoing codified standards.  The Panels find it noteworthy that many of the specific examples raised by the BDU consortium fell into this category; that is to say, they were commercials, promos or bumpers, for which the Panels did not expect, or find, objectivity.

Save Local Television: A Problem?

Of the issues for the Panels’ consideration in the matter at hand, there was actually only one that might have led to a finding of a Code breach, namely, as noted at the very start of this decision, the fee-for-carriage issue.  In other words, in brief, should the BDUs pay the broadcasters for the right to carry their signals, or not?  There were, as will be discussed below, points in the challenged broadcasts when that very issue or the fairness of one side or the other was discussed.  Most of the time, though, the touchy issue of fee-for-carriage was not even mentioned.  The challenged broadcasts simply focussed on local television.  They included such phraseology as “celebration of local television”, “tell us why local television matters to you”, “I support local television”, “help save local television”, “part of the community”, “the issue of local TV and its future”, “local television helps mobilize the community” and the like.  There were also several references to open houses and invitations to them being set up by the various CTV-owned stations, and retrospectives of past newscasts underscoring the importance of local news reporting.

The Panels have no illusion about either the terminology or the motivation for the emphasis of those stations on their community role.  It was of course intended to build grassroots support for local television.  Blatantly, brazenly, unequivocally, and without a dash of modesty or restraint.  And using local personalities, including show hosts and news anchors to the fullest possible extent.  The Panels readily acknowledge that the campaign was loud and proud, and that it was intended to build strong local television loyalty.  And not surprisingly, no-one was brought on the airwaves to contradict the “motherhood and apple pie” principle that local television is a “good thing”.  Neither the motivation for, nor the execution of, the “Save Local Television” campaign is at all lost on the Panels.  But that is not the issue the Panels need to resolve.

The question is whether that self-serving, patting-themselves-on-the-back broadcast content was in any codified-standards sense problematic.  The Panels conclude that it is not.  The rationale is straightforward: the promoting of the value of local television, without reference to the contentious issue of fee-for-carriage, breached neither Clause 5(2) nor 7 of the CAB Code of Ethics, in the sense that the “save local television” issue was not itself a “controversial public issue”, and that would be critical to any finding of breach of those Clauses.  Had the reference to local television been per se controversial, the Panels’ views might well have been different.  It was not.  News was not selected to further one side of a controversial issue.  There was no need to treat a non-controversial issue in a fair or balanced way.  As the Commission said in “Balance in Programming on Community Access Media”, Public Notice CRTC 1988-161 (29 September 1988), “it considers that members of the public should be placed in a position to form their own opinions on controversial issues through the presentation of various points of view on such issues,” and it points out in paragraph (b) that “Not all programming need be balanced, only that relating to matters of public concern.”  [Emphasis added]  For the foregoing reason, the purely “Save Local Television” news segments breached none of the above code provisions.

Reporting of the Contentious Question

This is another matter.  There was a responsibility on all CTV stations to treat fairly, in their news programming, any subject of a controversial nature, and this would include the fee-for-carriage issue.  While it always does so, the Panels wish to make it abundantly clear that they have carefully reviewed every broadcast moment identified and complained of by the member of the public and the consortium of BDUs.

In the case of the Atlantic stations, there were only three moments that fell into the contentious category.  The first was a brief reference during the May 20 episode of Live at 5, when, coming out of a commercial break, host Bruce Frisko made the following solicitation for community support while the camera zoomed in on a sign outside a Dartmouth Dairy Queen restaurant that read:

Support our Local CTV Open House

Sat 1 to 4

The comment:

Frisko:  Well, our friends in the community are getting behind CTV’s Save Local Television campaign.  This, uh, sign in support is outside the Dairy Queen restaurant on Main Street in Dartmouth.  You can find out more information about, uh, our effort and sign a petition asking for fee-for-carriage at Save Local TV, er, SaveLocal.CTV.ca [URL appears at bottom of screen].  And we want to thank our friends over at Dairy Queen in Dartmouth for, uh, helping us get that message out there.

There was no discussion of the fee-for-carriage issue beyond that mention.

The second instance was an oblique reference to the subject in a question and answer between news anchor Steve Murphy and Nova Scotia MP Rodger Cuzner during CTV News at Six on May 22.  The pertinent part of the exchange went as follows:

Murphy:            What would be your concerns, uh, about your voters, the people you represent and, and their interest in this, in terms of, uh, the cost, for example?  Cable, the cable industry says it will pass on these costs to consumers.  What would be your thoughts on that?

Cuzner:             Oh well, you know, the cable industry has, I, I’ve, uh, heard the arguments coming from the cable industry and, uh, you know, to, to say that it’s been traditional, it’s been historic that, uh, uh, you know, that they haven’t had to pay for this service, uh, I don’t really know if that stands up.  Again, you know, industry, so many industries have changed in the last number of years.  And, and with the, uh, uh, television companies, now they’re being, uh, pushed so much with, uh, advertising dollars.  They have to look at every opportunity here to, to, to try to, uh, sustain revenues and to, to try to, uh, so that they can continue to provide, uh, local programming options.  And, uh, that’s what the essence of this is all about.

The Atlantic Panel finds that the exchange was in and of itself balanced.  The question was a fair rendition of the cable industry position and the MP’s reaction was actually a restatement of one of the cable industry’s arguments.  The broadcasters’ side merely observed the television companies’ experience of falling advertising revenue and the need to maintain its revenue stream.  There was no actual argument over the rights and wrongs.  The Atlantic Panel finds no imbalance here.

The third and most significant occasion was the five-minute-plus interview with Paul Sparkes, CTV’s Executive Vice-President of Corporate Affairs during the same CTV News at Six program.  Some of the phraseology used by news anchor Steve Murphy was cautious, even framing the issue from the cable perspective, and there were acknowledgments that “it is difficult, if not impossible, for us to be totally dispassionate about this” and “We have been accused of unbalanced and one-sided coverage in a complaint to the CRTC [the one referred to the CBSC by the Commission that is the matter at hand].”  While acknowledging this, the Atlantic Panel has no doubt that Mr. Sparkes was given a broad opportunity to make his case.  That is fair enough.  It is, after all, expected that most interviewees, chosen for their knowledge, expertise or perspective, will have a point of view.  When, in rarer circumstances, the interviewee may be chosen to support the very interests of the broadcaster airing the interview, more caution will be expected of that broadcaster in the achieving of fair treatment of both sides of that controversial issue.

The question for the Atlantic Regional Panel is whether or not CTV Atlantic offered countervailing comments providing a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and treating fairly a subject of a controversial nature, one such possibility being the representation of the BDU side of the debate.  And, it should be remembered, any such balancing comments must be on the same station (not merely the same corporate group) that aired any comments requiring balance or exposure to differing views.  There were at least two such opportunities provided.  The first was a statement by Dan McKeen, Co-CEO of Eastlink Cable, an Atlantic Canada BDU, on CTV Atlantic on May 12.  He referred to fee-for-carriage as a tax to support local broadcasting that, in effect, penalizes cable customers.  He said:

It is essentially a tax – a tax to support local broadcasting.  If the government wants to support local broadcasting with a tax, then they should put in a tax that affects all customers, not just cable customers.

What was more significant, however, was the CTV Atlantic May 29 broadcast of an essentially equal (in terms of duration) six-minute interview with Ken Englehart, the Chief of Regulatory Affairs for Rogers.  CTV stated in its letter of June 12 to the individual complainant that Mr. Englehart had argued in the interview that cable companies should not have to pay for free signals that benefit from mandatory carriage on their distribution services.  The CTV letter also pointed out that the Rogers executive had opined that the trouble facing local television was caused by the recession and bad business decisions.  In his words as quoted:

CTV and Global have made some bad business decisions.  They’ve gone on sort of a berserk spending spree in Hollywood and they’ve spent too much money for programmes.  It is not right to make customers pay for their business decisions.

While the Atlantic Panel does not have the recording or transcript of the Englehart interview, it considers that the information provided in the CTV letter provides sufficient evidence of countervailing discourse to fulfil the fair treatment requirements of Clause 7 of the CAB Code of Ethics.  In the case of the CTV Atlantic stations, there is no breach of either Clause 7 or Clause 5(2) of the CAB Code of Ethics or Article 1 of the RTNDA Code of (Journalistic) Ethics on that account.

The Ontario Panel performed a similar analysis on the content of the Ontario-based stations.  One of the potentially contentious moments occurred on the CTV News at Six of May 20 on CJOH-TV.  First, Carol Anne Meehan introduced an item on the value of local news with the following words: “now, as you’ve heard, local television is in crisis.”  Then, while discussing the Canadian Advanced Technology Alliance (CATA), Carol Anne Meehan reported that the “group also says cable and satellite firms should pay a fee for access to TV content.”  This language differs from that discussed above in the context of “save local television”.  The latter is a positive, supportive, un-contentious statement, while the former reference to “local television in crisis” constitutes more loaded, less balanced language. The single sentence in the context of the CATA news report was more directly associated with the fee-for-carriage issue.  In all, though, the references to controversial issues on the May 20 newscast were brief, and the Ontario Panel takes note of three other CJOH-TV newscasts, namely, those of April 27, May 23 and May 26, on which there were either clips of interviews, or quotations from, important representatives of the BDUs, running 16 or 17 seconds in two of the three cases.  The Ontario Panel finds no imbalance here.

A second instance in which the Ontario Panel has encountered some, albeit very little, problematic language was during the CFTO-TV newscasts at noon, 6:00 pm and 11:30 pm on May 20. During each of those newscasts the respective hosts read scripts ostensibly inviting viewers to their Open House, but doing so in a less benign and objective way.  Each said:  “The reality is, we aren’t compensated by the cable and satellite companies who take our programming.”  In other words, while CFTO-TV hosts did not content themselves with such detached, positive and utterly non-controversial references to saving local television and inviting audience members to visit the station, they barely touched the controversial subject of fee-for-carriage.  Moreover, the language was a factual assertion regarding compensation; it was true that no pecuniary compensation was paid.  No argument was raised regarding the justification or appropriateness of that current reality; it was only an observation, and, at that, a promotional, scripted invitation during each of the three above-noted newscasts.  The Ontario Panel finds no Code breach on that account.

In the case of CKCO-TV, the station did an extended interview with Dennis Watson, the Vice President and General Manager of the station.  In its content and focus, it was not unlike the interview with Paul Sparkes examined by the Atlantic Panel and which that Panel found to have been balanced by interviews with representatives from the BDU companies.

In the case of CKCO-TV, the Ontario Panel finds that there were at least three instances where the BDU side of the fee-for-carriage argument was presented.  In a report of April 22, the station reported on a Parliamentary Committee’s examination of the state of local television.  It included footage of Rogers’ appearance before the Committee, including a clip of that company’s Vice-Chairman, Phil Lind, stating “This [conventional television’s argument] is little more than self-serving fiction” and that conventional television is “a cyclical industry” that “will be profitable again.”  Then, on April 27, another report included a lengthier interview with Lind.  In it, the Rogers executive made the following statement:

I’m saying that the conventional, over-the-air may be losing money at the moment.  But a lot of people are losing money at the moment.  This is a very di-, we’re in a very dire economic time.  So this is not the time for bailing every-, er, everybody who’s losing money out.

In the May 23 coverage of CKCO-TV’s Open House, the BDU position was also presented.  Reporter Meghan Furman acknowledged, indeed explained in a meaningful way, that cable companies are “dead set against” conventional television’s proposal for carriage fees.  She also showed a close-up image of a full-page newspaper advertisement paid for by Shaw Communications that set out the BDUs’ disagreement with the television stations.  Furman used the phrase “powerfully worded” to describe the advertisement and then explained:

Shaw Cable says broadcasters are holding subscribers hostage, threatening to shut down local stations if they don’t pay extra fees.  Fees they say they will pass on to their customers.

There was then another clip of a different interview with Lind who said “Conventional over-the-air broadcasting is having a rough spot right now.  That’s true.  But, you know, when the economy comes back, C-, CTV will, CTV conventional will come back.  City conventional [Rogers’ own conventional television station group] will come back.”  That report also revealed that the BDUs had filed a complaint alleging bias in CTV’s coverage of this debate.

While all of those reports also covered the conventional television side of the debate, the Ontario Panel considers that the multiple inclusions of the BDUs’ position as well as direct quotations from their representatives provided sufficient balance.  CKCO-TV is therefore not in violation of either Clause 5(2) or Clause 7 of the CAB Code of Ethics or Article 1 of the RTNDA Code of (Journalistic) Ethics.

Broadcaster Responsiveness

It is always the case that the CBSC Panels measure the responsiveness of the broadcaster to the concerns of the complainant(s).  In the matter at hand, there were two responses sent, one to the individual complainant by the CTV Atlantic Director of News and Public Affairs and the other to the BDU consortium by CTV’s Executive Vice-President, Corporate Affairs.  The first was detailed and thoughtful, including examples of countervailing views, most useful in the circumstances.  The second was also detailed and thoughtful, as well as replete with details, examples, and carefully focussed reasoning based on the relevant regulatory and self-regulatory instruments.  That said, as briefly discussed in the previous section, it should be noted that the only relevant examples of balancing content on controversial issues for an Adjudicating Panel are those broadcast on the same stations whose broadcasts are being considered.  For greater certainty, the Atlantic and Ontario Regional Panels wish it to be understood that countervailing content from other stations in the same corporate group cannot be, and were not, used to establish balance during the broadcasts of any challenged station.  In any event, the provision of the additional material by the broadcaster evidences the great care that went into the response.  Nothing more could be expected of any broadcaster.  CJCH-TV (in the letter sent to the individual member of the public) and CTVglobemedia Inc. (on behalf of its stations CKCW-TV, ASN, CJOH-TV, CKCO-TV, CFTO-TV and CKVR-TV, in the letter sent to the BDU consortium) have amply fulfilled their CBSC membership obligation of responsiveness to the complainants on this occasion.

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