CJOB-AM re the Spin to Win Contest

PRAIRIE REGIONAL PANEL
(CBSC Decision 05/06-0538)
D. Ish (Chair), V. Cownden, D. Dobbie, J. Fong, K. Leavins, G. Spenrath

THE FACTS

On September 30, 2005 at 7:09 am, morning show host Larry Updike conducted a contest called “Spin to Win” on CJOB-AM (Winnipeg).  The following is a transcript of the announcement of the contest, the dialogue with the caller and the final statement by the host:

Larry:    Time now is 7:09 and it’s time once again to play CJOB 68’s Spin to Win.  Lots of great prizes up for grabs today.  Especially if your name is [J. G. S.].  [J. G. S.].  You can call us at a special number, [J.]. Here it is:  it’s 780-CJOB.  Did you hear that?  780-CJOB.  [J. G. S.], you call us within 68 seconds, you get a chance to spin the wheel for great prizes on Spin to Win because you entered at SpinToWin.com or SpinToWin@CJOB.com.  So one more time:  [J. G. S.], you have 68 seconds to call 780-CJOB.  And, [J.], your 68 seconds begins right now.

[Commercial break]

Larry:    All right.  It’s, uh, ten and a half after seven and Spin to Win is the contest.  There’s your theme music and look at this phone line.  Let’s have a go at this one here.  This is live on CJOB 68.  Who am I speaking to?

J:          You’re speaking to [J. G. S.].

Larry:    [J. G. S.]!  My goodness!  Hey, it looks to me, ’cause I’m rattling when our, when my producer [S. V.] answers the phone, okay?  So I, you know, I don’t know it’s you or what phone is ringin’.  I think you called within like ten seconds, didn’t you?

J:          Oh, thanks to my husband.

Larry:    [chuckles] Good on him.  Uh, you want to, you want to see what’s on the wheel today?  Let’s have a peek.

J:          Absolutely.

Larry:    Okay.  A thousand dollars cash.

J:          Ooh.

Larry:    2006 season tickets to the Blue Bombers.  A trip for two to the entertainment capital of the world,Las Vegas, including luxury hotel accommodation courtesy of Jet Vacations.

J:          We could use that.   Four kids, you know?

Larry:    Oh dear.  A Vision Fitness exercise recumbent bike with a built-in iNet television.  You can surf the web, watch movies and more.  The prize valued at four thousand dollars from Fitness Experience, 640 King Edward.

J:          That sounds good too.

Larry:    And a laser DX mountain bike from the Lung Association of Manitoba.  That’s what’s on the wheel.

J:          All right.

Larry:    All you have to do now, uh, is just tell me, just say this:  “Larry, spin the wheel”.  Just shout it out. Go ahead!

J:          Larry, spin that wheel!

[Sound of prize wheel spinning]

Larry:    Here we go.  Round and round and round she goes.  Oop.  Oh, [J.], congratulations, you have won a trip for two to the entertainment capital of the world, Las Vegas, including luxury hotel accommodation from Jet Vacations.

[Sound of applause]

J:          All right.  Thank you!

Larry:    All right.

J:          The only thing that could be any better than that is if they included babysitting [laughs].

Larry:    [Laughs]  We’ll be in touch, [J.], okay?

J:          Thank you very much.

Larry:    You’re very welcome.

J:          B-bye.

Larry:    B-bye.  There you go.  That’s [J. G. S.], another winner.  Spin to Win.  How do I enter?  It’s so simple.  Uh, get your name and address and phone number to 930 Portage Avenue, our address here. And it’s a block West of Arlington.  Better still, SpinToWin@CJOB.com.  I love to give.

The CRTC received the following complaint via e-mail on October 17, 2005 and forwarded it to the CBSC in due course (the full text of all correspondence can be found in the Appendix):

On September 30, 2005, my wife’s name was called for the “spin to win” contest at CJOB AM 680 in Winnipeg.  She had 68 seconds to call in and did so in 10 seconds.  She won a prize for 2 to “a luxury hotel in Las Vegas” including airfare.  We have both attempted to find out the parameters of this prize with respect to possible choice of travel date and choice (or cost to us for upgrade) of hotel.  At first we were told we have a choice of 6 weekends and of 4 hotels.  Later, we were told that “it was probably the weekend of Dec 1-4, 2005, and maybe the Riviera Hotel”.  We have both tried to contact the station and the company providing the prize, as we both have to make arrangements to be away from work and we have to make arrangements for 4 days of child care for 3 small children.  We were told that “sometimes people can’t use prizes they win” and that we could return the prize to the prize pool if we couldn’t use it. We have both been very clear with the station that we intend to use this prize.  We have asked that they confirm which weekend we will travel, so that we can make plans.  [.] I feel as if the station participated in a promotion with no apparent prize available.  It has been more than 2 and a half weeks since the prize was won and since we both made it clear that we needed to make plans to travel.  The station keeps “promising” to “get back to” us the next day or after the next weekend with “confirmation” but they have NOT done so.  We are stressed and frustrated and we are writing to inquire if we have the basis for a serious complaint about CJOB. [.]  

The husband and wife also sent a complaint directly to the CBSC. 

Since winning “a trip for two to a luxury hotel in Las Vegas” from CJOB Winnipeg’s Morning Show on September 30, my excitement has decomposed into anxiety and discomfort.  I tried hard to work with the prize providers, Jet Vacations, to cooperate and figure out the best arrangements for the trip.  After too many unreceived and promised phone calls, I spoke last with [K.] from Jet Vacations about 2 weeks ago. I found her rude and impatient.  Instead of treating me as a customer, and a potential future customer and referral source, I felt short-changed in courtesy, in service, and in the accommodations offered.

I called CJOB simply to let them know how I was feeling . I was trying to make sense of how any business (i.e. Jet Vacations or CJOB) would enter into such a promotional agreement without valuing the potential business arising from it!  I was contacted later that afternoon by a young man from CJOB, [J.], in charge of the promotion, who informed me that I was making trouble for him, for Jet Vacations, and I should leave everybody alone because I had created difficulties in making arrangements!  I found this call rude and upsetting.  My husband, at first VERY excited about the trip, had been very anxious about confirming a date as soon as possible for arrangements to be made to cover his work duties, my work, and childcare.  To meet with rudeness seemed unacceptable to us.  We are customers in this situation!

My husband responded to my being upset after [J.]’s and [K.]’s calls by leaving a voice message for [J.], and emailing [C. L.], head of CJOB Promotions.  To this date, although [J.] has been pleasant in subsequent calls, he did not apologize for upsetting me, and neither he nor [the Promotions Director] answered my husband.  The complaint went up a level, and we received a curt reply from [the General Manager], basically supporting his staff.  Although we tried to let it go, as time went on, we became more and more anxious about resolving a travel date, which now we had to do through CJOB, and we became tired of [J.] either NOT calling, or calling to postpone us again.

Anxiety led to our contacting CRTC, and they replied, referring us to your organization.  We decided to wait for further action, to give [J.] and CJOB some time to redeem themselves.  Today, Thursday October 20, I was in contact with [J.], who indicated that rather than we coming to the station to pick up the papers he now had ready, he would send them by courier.  About 45 minutes later I received a call from the Station Operations Manager at CJOB.  She said her name quickly, and I didn’t catch it, but by the time she was done, I didn’t want to ask!  Essentially, she said she had stopped the courier process; she would not allow the papers to be sent to me as they had received notice of our complaint, and “had to resolve that first”.  I tried to explain what we continued to find frustrating in our dealings with the station, but she made it clear that we were responsible for upsetting all of them.  I felt her anger burning in my ear, and the thought came to me that this was our “punishment” for expecting and demanding polite service.

I have no sense of any positive resolution of this for my husband and myself.  She did NOT want to listen to me, nor to discuss the matter, nor give a time frame for resolution.  When I reported this to my husband, who is away at a conference in Toronto, he was very upset.  You have, I trust, received his letter already.  My relationship with my husband has even felt the strain of trying to deal with this situation.  Well, that is my side.  I am sorry I participated in the contest as I have enough stress in my life already.  This was supposed to be a wonderful, unexpected pleasure for us.  I could have done without the anxiety, the time, and the trouble.  

The station’s Operations Manager responded on October 24.  She said, in principal part:

The contest “Spin to Win” started on September 12th on CJOB.  Prior to this date, the prize supplier (Jet Vacations) had committed a trip for two to Las Vegas including air fare and accommodation.  Due to unsecured flight and hotel information on September 30th, the supplier did not have complete information at this time, which is normal at the beginning of the travel season.  You were asked on September 30th to wait for CJOB promotions staff to get the accurate information.  You and your husband chose to contact the supplier directly, as well as several members of CJOB staff, including the General Manager, on many occasions between September 30th and October 17th.

On October 18th, our Promotions Coordinator left a phone message for you, advising of the confirmed trip dates and accommodation details.  He asked you to call us back to arrange a time to come in and pick up the package.  As of October 20th, you had not returned his call.  We contacted you again, and then received this complaint from CBSC.

We apologize if the trip information was not available as quickly as you wished.  There are often delays in delivering prizes from our suppliers which is beyond our control, but often necessary when we want to provide exciting and attractive prizes to our listening audience.  I assure you that at no time did CJOB “participate in a promotion with no apparent prize available”.

The prize package is available at CJOB if you wish to come in and claim.  Please call me at 789-0573 to make arrangements. 

The complainants sent their Ruling Request to the CBSC on the same day.  Appended to it was the following message:

This “response” is SO inadequate and untrue, I am almost beyond words.  My wife contacted Jet Vacations after being advised that the details of the “prize” were not yet available, to determine if we had ANY choice with respect to travel dates or accommodation.  We were told we did have.  Then [J. S.] phoned my wife and angrily blamed her for upsetting everyone and TOLD her not to call Jet Vacations.  He did not respond to my voice message about his rudeness to my wife.  [The Promotions Director] did NOT forward my letter of complaint to [the General Manager] as I requested.  [The General Manager], to whom I subsequently wrote through a secretary at CJOB, confirmed that he had received no complaint from me and asked that I write to him directly.  We wrote a VERY detailed letter of complaint and included the letter I had sent to [the Promotions Director] within that letter.  We received a weak reply congratulating us for getting the weekend we had wanted and for the matter being completely resolved.  I immediately wrote back to dispel his misconception that we had anything CLOSE to the weekend we wanted and that he had not addressed his staff’s rudeness or their failure to communicate my concerns to him as I had requested.  He did not respond.

I was delighted that the trip was finally confirmed last week.  I was informed of this after NOT receiving a response from a detailed email I sent to [the Promotions Director], lacking which I proceeded to write to the CRTC.  When the CRTC informed me that they were not the body I should contact, I made arrangements at the hospital and with my colleagues to be away for the “confirmed dates”.

Then, CJOB got a copy of my letter to the CRTC and called my wife, speaking angrily to her AS IF we had no right to complain.  She was told that “the arrangements were on hold” because of our complaint.  My wife felt bullied and even tried to placate the angry caller by placing “blame” for the complaint on me.

Having been told the arrangements were on hold, I told the hospital I would not be away for those dates.  I am NOT satisfied with the response from CJOB who have not yet apologized for their inconsideration and rudeness or for their failure to communicate with us.  My wife even tried to teach [J. S.] that “promising” to have a confirmation and to call the next day was not a good idea unless he had the ability to follow through.

We feel that CJOB is blaming US for their rudeness and incompetence and they somehow think that we can drop everything to travel, despite our having made clear from the first day that we needed confirmation in time to make arrangements to be away from work and to have someone care for our children.  We did NOT pursue their use of the adjective “LUXURY” for the second rate hotel they offered, but we are making an issue of it now.  We did not make an issue of being offered choices for when to travel and where to stay, only to have the choices completely removed and being TOLD when we could go and where we could stay.  We are making an issue of this now.

We have consistently told CJOB that we intend to accept this prize, and we still intend to accept this prize.  However, since it is “on hold” because of our complaint, we are not going to pick anything up from CJOB until after this matter has been addressed by a panel at CBSC.  We will then be happy to correspond with CJOB to discuss the details of this prize.  Please consider in the panel’s decision how much advance notice you think is adequate for us to arrange to travel. 

 

THE DECISION 

The Prairie Panel examined the complaint under the following provision of the Canadian Association of Broadcasters’ (CAB) Code of Ethics

CAB Code of Ethics, Clause 12 – Contests and Promotions

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

The Prairie Panel reviewed all of the correspondence and listened to a tape of the program of September 30.  While it concludes that there was some imprecision in the execution of the contest and that certain aspects of it could have been better co-ordinated, it also finds that there was no breach of the foregoing Code provision. 

Off-Air Issues 

The back-and-forth dialogue between the contest winner and her husband, on the one hand, and the station, on the other, is a significant component of the complaint.  Much of this aspect of the file falls outside the mandate of the CBSC, whose ability to inquire is limited to the on-air representations of the broadcaster in this or any other file.  The CBSC is not a finder of fact; it does not conduct hearings (of a quasi-judicial nature) at which witnesses testify and bring evidence.  Nor should that matter, in the sense that the CBSC Panels assess what audiences hear or see.  The best way to evaluate that is by reviewing the actual recordings of the challenged broadcast content.  What was done or said off-air is not generally material in reviewing what was actually broadcast.  At the end of the day, the CBSC is more concerned with the sounds, the tone, the images of the broadcast and, possibly, the imputed reasonable perception of the audience than with elements of the broadcast production input.

Indeed, apart from the operational principle that the CBSC is not a finder of fact able to get to the bottom of any “they said/they said” controversy, the issues for which the CBSC has responsibility are those which are broadcast over the airwaves.  The actions and communications which precede or follow the broadcast do not use the airwaves and are not matters for CBSC Panel assessment.

In CFSK-TV (STV) re an episode of Friends (CBSC Decision 95/96-0159, December 16, 1997), this Panel commented on the complainant’s allegations that, when she phoned the station to complain, she had not been taken seriously.  On the issue of the off-air telephone communication, the Panel concluded that it would make

no judgment, however, with respect to the telephone conversation between the complainant and the station manager described in the complainant’s letter.  The Council is not an evidence-gathering body and, in the absence of agreement as to the facts, has no means by which to assess what may have transpired between the broadcaster and the complainant. 

In CFRN-TV re Eyewitness News (CBSC Decision 96/97-0149, December 16, 1997), this Panel responded to a complaint relating to a news feature on the subject of indoor playgrounds at fast food restaurants in the Edmonton area.  The Panel limited its decision to 

the on-air portion of the reporter’s comments.  In the first place, it had no way to determine what transpired during telephone conversations attempting to set up interviews.  Not only does the CBSC never have a tape or transcript of such conversations, but it is also not an evidence-gathering body.  It does not hold “hearings” in a quasi-judicial sense.  It limits its review, in almost all cases, to the evaluation of the on-air program against the Codes which it administers.  While the correspondence between the complainant and the broadcaster is always taken into consideration, these letters are treated only as argument and not as evidence.  The CBSC members understand that issues of what the broadcaster intended to be the effect of the program or the way in which the listener or viewer understood the program are not ultimately determinative.  What reaches the airwaves is the issue. 

Finally, in terms of the CBSC’s jurisprudence on this point, in CKVR-TV re News Item (Car Troubles) (CBSC Decision 97/98-0235, July 28, 1998), the Ontario Regional Panel made the following statements regarding certain off-air events relating to the complaint in question:

In circumstances where there may be any conflict between two versions of what transpired in an off-air telephone conversation, as in this case, the Panel is not in a position to make any determination on that issue since the CBSC does not hear witnesses, carry on investigations or gather evidence in any other way. 

It follows, in the matter under consideration, that the allegations regarding the station’s post-contest “promises” about when they would get back to the contestant, the rudeness of the station or the service supplier, and other off-air frustration-causing comments cannot be considered by the Prairie Regional Panel in terms of the codified standards.  Nor will the Panel make any attempt to evaluate the timing, insistence, and nature of the contestant’s contacts with the supplier and the station.  The foregoing being said, the Panel appreciates the deep-felt concerns of the complainants and notes that many of these could have been avoided had the arrangements been less loose, the rules clearer (it is not evident from the broadcaster’s correspondence whether they were posted on the CJOB website), and the station more prepared for its winner at the time of the on-air launch of the contest.  Such organizational preparedness would also have resolved such issues as what would have amounted to a “reasonable” period of time for the contestant and her husband to have been able to arrange their affairs so as to avail themselves of the holiday in Las Vegas.  None of these structural or procedural uncertainties amount to Code breaches and they will not be further reviewed by the Panel, which has no mandate to make recommendations in this connection. 

The Contest-related Issues  

The sole questions for the Panel to consider are those found in the wording of Clause 12.  Was the contest conceived and conducted fairly and legitimately?  Was it misleading?  Were any prizes offered or promises made that were not what they were represented to be? 

On the issue of unfairness or the misleading nature of the contest, the Panel refers to a decision of the British Columbia Regional Panel in CFOX-FM re Larry & Willy Show (Bryan Adams Contest) (CBSC Decision 97/98-0534, May 20, 1998).  In that case, the Panel dealt with a complaint concerning a contest which promised a prize (four excellent tickets to a forthcoming Bryan Adams concert) to the first caller who could give the morning show hosts Bryan Adams’ middle name.  Although not evident in the beginning, it soon became clear, after a few “unlucky” callers (who had provided the correct answer) were turned down, that the hosts were not in fact looking for the pop star’s real middle name; rather they were looking for a “spoof” name, made up by Larry and Willy.  The complaint came from an aggrieved contestant, the one who first provided the “correct” answer.  As this was the CBSC’s first opportunity to interpret the meaning of the Contests and Promotions Clause, the Panel’s decision set out the general framework for considering complaints under that heading.  In the Panel’s view, the wording of the provision “suggest[s] that a notion of ‘fair play’ should also be at stake in such contests or promotions.”  It considered that Larry and Willy’s “spoof contest” breached the Code on that count.  The Panel stated that it had “little doubt that the application of common societal standards would lead any fair-minded person to conclude that the contest was […] not legitimate to the consumer/listener.” 

[T]he Council notes that the hosts’ choice in setting up the contest as a joke is not the issue.  There is certainly no requirement that radio contests be serious.  What is the issue is that the contest was conceived and conducted in such a way as to be misleading.  Callers had a legitimate expectation that they would win the prize if they were the first to answer the relatively easy question correctly (as stated by the broadcaster, “It is fairly common knowledge that [Bryan Adams’] middle name is Guy, since he performed under that name for a number of years here in Vancouver in his earlier career.”).  In fact, the caller who was first in providing the “correct” answer was not awarded the prize.  The Council reiterates that it is not that the hosts sought a “spoof” middle name for Bryan Adams which offends the Code; rather it is that the contest was conceived and conducted to make it look as if they would award a prize for a certain answer when in reality they did not intend to do any such thing.  Such a contest offends the generally accepted notions of fairness and fair play and therefore cannot be said to be in conformity with the requirements of [the contest provision] of the CAB Code of Ethics. 

There is no similarity between the contest under consideration and that reviewed in the BC decision.  In the matter at hand, the contestant called on a timely basis and was declared the winner.  The contest was neither misleading nor unfair. 

As to whether the prizes offered or promises made were what they were represented to be, the Panel can find no fault with the station.  The on-air representation was “A trip for two to the entertainment capital of the world, Las Vegas, including luxury hotel accommodation courtesy of Jet Vacations.”  Can one argue that Las Vegas is not the “entertainment capital of the world”?  Perhaps (although the complainants did not).  Can one argue that the hotel accommodation was not “luxury” accommodation?  Perhaps (and the complainants did).  Apart from the fact that the name and nature of the hotel were not disclosed (not that the Panel would purport to be able to assess such information), the Panel considers that both examples of descriptive language constitute nothing more serious than reasonable puffery.  There is no indication that the prizes offered or promises made were other than what they were represented to be. 

The Panel considers that the source of the complaints related to execution and delivery but not in any respect to misrepresentation, unfairness or other elements relating to the nature of, or offers made during, the contest.  It finds no breach of the CAB Code of Ethics. 

Broadcaster Responsiveness

The CBSC always assesses the broadcaster’s responsiveness to the complainant, which is a responsibility of membership in the Council.  It expects that response to be thoughtful and focussed on the substance of the complaint.  In the matter at hand, the Panel considers that the response of the Operations Manager reviewing the chronology of events (even acknowledging that the broadcaster’s and complainants’ versions are not identical) and advising that the prize package was available for pickup at the station constitute a thoughtful response that fulfilled CJOB’s obligation of responsiveness 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.