CANADIAN BROADCAST STANDARDS COUNCIL

Quebec Regional panel

CHOM-FM re the song "Locked in the Trunk of a Car" by the Tragically Hip

(CBSC Decision 04/05-0324)

Decided April 4, 2005

T. Rajan (Vice-Chair), R. Cohen (ad hoc), B. Guérin, B. Kenemy, G. Moisan

The facts 

At approximately 3:15 pm on September 21, 2004, CHOM-FM (Montreal) broadcast the song "Locked in the Trunk of a Car" by the Canadian rock band the Tragically Hip.  The lyrics of the version of the song played by CHOM-FM were as follows: 

They don't know how old I am,

they found armour in my belly

from the 16th century, conquistador, I think.

They don't know how old I am,

they found armour in my belly.

Passion out of machine-revving tension, lashing

out at machine-revving tension, brushing by the

machine-revving tension

 

Morning broke out the backside of a truck-stop

the end of a line a real, rainbow-likening, luck stop

where you could say I became chronologically fucked up.

Put ten bucks in just to get the tank topped off.

Then, I found a place it's dark and it's rotted.

It's a cool, sweet kinda-place

where the copters won't spot it

and I destroyed the map, I even thought I forgot it,

however, every-day I'm dumping the body.

It'd be better for us if you don't understand.

It'd better for me if you don't understand

 

Yeah

 

And I found a place, it's dark and it's rotted.

It's a cool, sweet kinda-place

where the copters won't spot it

and I destroyed the map that I carefully dotted,

however, every-day I'm dumping the body.

It'd be better for us if you don't understand

It's better for us if you don't understand

And better for me if you don't understand

 

Let me out

Lemme out

Lemme out

Lemme out

Lemme out

Let me out 

The CBSC received a complaint about the broadcast on October 9 from a listener who was concerned about the presence of the f-word in the song.  The complaint consisted primarily of a copy of a letter the listener had sent directly to CHOM-FM, which read in pertinent part (the full text of all correspondence can be found in the Appendix): 

Yesterday, Tuesday, September 21, 2004, somewhere between 3:10 and 3:20 pm, your station played a song, perhaps by the Tragically Hip, that contained the "F" word.  Your tapes will of course provide exact details.  This occurred at a time of day when many parents could potentially have been driving their children home from school while listening to your station.  I feel that your station has acted irresponsibly in this matter, especially considering that radio provides for no type of warning advisory similar to that on television.  Even on television, however, programming involving use of the "F" word is aired only after the "watershed" hour of nine pm.

 

As you are no doubt aware, your station has voluntarily agreed to abide by certain codes and standards as overseen by the Canadian Broadcast Standards Council (CBSC).  One of these codes stipulates that no member station will air material with "unduly coarse language".  While what constitutes "unduly coarse" language has changed significantly over the last few years, the CBSC has consistently and without fail decided in all cases that use of the "F" word by a radio station, in any context, is in violation of the code you have agreed to follow. 

In accordance with its usual process, the CBSC forwarded the complaint to the broadcaster on October 18 asking them to respond.  On November 9, the complainant filed his Ruling Request, indicating that he wished the CBSC to pursue the matter particularly since he had received no response from the broadcaster.  The CBSC Secretariat sent a letter to the broadcaster on November 10 reminding CHOM-FM to respond to this complaint pursuant to its responsibilities of membership in the CBSC.  When CHOM-FM still had not responded two months later, the CBSC National Chair telephoned the station on February 1, 2005.  The station then sent a response to the complainant on February 2.  The station explained its rationale for airing the song in question: 

When the song arrived at CHOM in 1993, it was decided that the use of [the] word in question was appropriate in relation to the song's content.  More importantly, it was not used disparagingly; therefore the song was played as received.  Upon receiving your letter, we reviewed the song again and feel that CHOM made the right decision at that time.

 

Given the song's consistent and continued request for airplay since 1993 on CHOM, I expect that our listeners have accepted the song's presentation in its current form. 

The complainant responded to that letter on February 3 in the following terms: 

I received your letter.  What you do not address is the fact that your radio station is a member station of the CBSC, and as such, has agreed to follow certain broadcaster codes.  One of these codes is that member stations agree not to broadcast material with unduly coarse language.  In many rulings, the CBSC's panel of judges have consistently ruled that use of material containing the F word is not acceptable material.  All this I stated in my original complaint to you of more than four months ago.

 

So despite your internal review, you are still contravening the agreement your station made when your station joined the CBSC.

 

Also, your response time to my complaint is well past the guidelines as established by the CBSC.  Since I did not receive a response from you until now, I have long since filed a formal complaint with the CBSC, and expect a ruling soon. 

 

the decision 

The Quebec Regional Panel examined the complaint under Clause 9 (Radio Broadcasting) of the Canadian Association of Broadcasters' (CAB) Code of Ethics, as well as under the terms of the sections "Responsibilities of Membership" and "Complaint Resolution Process" of the CBSC Manual. 

CAB Code of Ethics, Clause 9 - Radio Broadcasting 

Recognizing that radio is a local medium and, consequently, reflective of local community standards, programming broadcast on a local radio station shall take into consideration the generally recognized access to programming content available in the market, the demographic composition of the station's audience, and the station's format.  Within this context, particular care shall be taken by radio broadcasters to ensure that programming on their stations does not contain:

 

[.]

 

(c)                 Unduly coarse and offensive language 

CBSC Manual, Responsibilities of Membership 

Broadcaster members which join the CBSC do so voluntarily and, by so doing, agree to:

 

[.]

 

g)         co-operate fully with complainants by responding quickly and effectively to their concerns and informing them of their right to bring the matter directly to the CBSC if they are dissatisfied with that reply 

CBSC Manual, Complaint Resolution Process 

A copy of the complaint will [.] be forwarded to the broadcaster with the request that the member respond to the writer of the complaint within 21 days.  The Secretariat expects that the complaint will be given that priority by the broadcaster; however, should there be extenuating circumstances, such as a deluge of complaints, application should be made to the Secretariat by the broadcaster for an extension of that deadline. 

The Quebec Regional Panel concludes that CHOM-FM is in violation of the CAB Code of Ethics but not of the CBSC Responsibilities of Membership. 

Broadcast of Coarse Language during Daytime Radio 

The CBSC has dealt on numerous previous occasions with the broadcast of the f-word and its variations on radio at times of the day when children could reasonably be expected to be listening.  Most of those previous decisions have involved the presence of the f-word in songs, while a smaller number have dealt with the use of the f-word during on-air discussions.  The CBSC has consistently ruled that broadcast of the f-word on radio during daytime and early evening hours constitutes a breach of the CAB Code of Ethics.  The Quebec Panel is aware of the fact that language usage is constantly in a state of evolution, both on the French and English sides of Canada's heritage.  Formerly unacceptable language gradually but invariably insinuates itself into more common usage and a review of the old and new practice is merited from time to time.  That is likely the case with respect to the f-word and its derivatives, which, after all, appear in noun, verb, adjective, adverb and interjection forms in English.  Some of those forms are more aggressive and some are more benign but all are undoubtedly extremely offensive to certain sectors of Canadian society.  While the Quebec Panel does not suggest any change to the present CBSC rules, it notes that it may be appropriate that some consideration be given to this group of words and other coarse and offensive language in due course. 

In the circumstances, a review of CBSC jurisprudence is warranted.  The first occasion on which the CBSC addressed the issue of the f-word in songs was in CIOX-FM re the songs "Livin' It Up" by Limp Bizkit and "Outside" by Aaron Lewis and Fred Durst (CBSC Decision 00/01-0670, June 28, 2001).  The first song contained repeated instances of the words "fuck" and "motherfucker", while the second contained one instance of the word "motherfuckin'".  The songs were played at 11:31 am, 4:00 pm and 8:31 pm.  Commenting that regulatory bodies in other English-speaking countries have addressed offensive song lyrics in the same way, the Ontario Regional Panel concluded that the broadcasts violated the CAB Code of Ethics: 

In the case of the song lyrics in "Livin' It Up", the Panel finds that the repeated use of the coarse and offensive language "fucker", "fuck" and "motherfucker" constitutes a breach of the CAB Code of Ethics when broadcast at hours when children could reasonably be expected to be listening.  In the event that an edited version of the song was unavailable, CIOX-FM had the choice of delaying the airplay until a later hour or not playing the unedited song at all.  The choice made constitutes a breach of [...] the CAB Code of Ethics.

 

While, in the song "Outside", the inappropriate word, "motherfuckin'", was used only once, as a live interjection by the singer at the time of the Biloxi concert, the Panel considers that its use was utterly gratuitous and broadcast at an hour when children could reasonably have been expected to be listening.  Moreover, given its placement in the song, it could very easily have been excised without effect by the broadcaster.  The broadcast of the song without editing when children could be expected to be listening constitutes a breach of [...] the CAB Code of Ethics. 

The CBSC Prairie Regional Panel came to a similar conclusion in CJKR-FM re the song "Highway Girl (Live)" by the Tragically Hip (CBSC Decision 00/01-0832, January 14, 2002).  In that case, the radio station broadcast a version of the song which had been recorded live at a Tragically Hip concert.  In the live version, the lead singer of the band performed one of his signature "rants" in which he tells a story or recites a poem in a stream-of-consciousness style.  The "rant" in this instance contained the word "fucking" and the song was broadcast at 11:02 am.  The Panel ruled that the coarse language was unsuitable for broadcast at times of the day when children could reasonably be expected to be listening. 

Then, in CFNY-FM re the song "Cubically Contained" by the Headstones (CBSC Decision 01/02-0456, June 7, 2002), the CBSC dealt with a complaint about a song that contained the word "fuckers" broadcast at 8:10 pm.  The broadcaster indicated that there was no edited version of the song available for airplay.  Based on the above-mentioned previous CBSC decisions, the Ontario Regional Panel came to the conclusion that the song was inappropriate for broadcast at a time when children might reasonably be expected to be listening, contrary to the CAB Code of Ethics.  It also referred to an earlier decision of the Ontario Regional Panel, namely, CIGL-FM re a song entitled "The Bad Touch" (CBSC Decision 99/00-0654, October 12, 2000), in which the Adjudicators observed, 

It should, moreover, be noted that music recording companies, like distributors of motion pictures, generally create more than one version of their respective products.  They understand that, in order to facilitate the responsibilities of broadcasters and to render broadcast markets more accessible to their products, they must provide versions that are susceptible of being aired.  While broadcasters themselves frequently edit motion pictures, whether for content or to ensure that there are appropriate breaks for commercials, it is obvious that recorded popular songs are not as readily susceptible of broadcaster intervention.  The decision for the broadcaster, when there is no edited version of a song, may, therefore, become, in black and white terms, whether to play or not to play.  Knowing that, in order to assure air time, recording companies frequently provide a second version which they consider suitable for radio broadcast. 

Consequently, even in the absence of an edited version of a song, the decision of the broadcaster to play the song constituted a violation of the CAB Code of Ethics. 

Four CBSC decisions have also treated the broadcast of the f-word in on-air discussions.  In CKNW-AM re Warren on the Weekend (CBSC Decision 01/02-0721, January 14, 2003), CJAY-FM re Forbes and Friends (Chinese Language "Translations") (CBSC Decision 02/03-1646, April 16, 2004), CFNY-FM re the Show with Dean Blundell (David Carradine Appearance) (CBSC Decision 03/04-1305, October 22, 2004) and CFGQ-FM (CKIK-FM) re a live Tragically Hip concert and interview (CBSC Decision 03/04-1850, November 1, 2004) the CBSC Adjudicating Panels found the broadcasts of the expressions "fuck off", "fuck" and "fucking super" to be in breach of Clause 9 of the CAB Code of Ethics. 

Based on all of the foregoing decisions and the state of the CBSC jurisprudence at this time, the Quebec Regional Panel concludes that the use of the f-word at a time of the day when children could be listening constitutes a breach of the prohibition against the broadcast of unduly coarse or offensive language contained in Clause 9(c) of the CAB Code of Ethics. 

Broadcaster Responsiveness 

In all of its decisions, the CBSC assesses the broadcaster's responsiveness to the complainant.  In accordance with the Responsibilities of Membership, broadcasters are required to respond to complainants within 21 days of receiving a copy of the complaint from the CBSC.  Broadcasters are also expected to provide thoughtful, thorough responses to complainants.  In previous instances where broadcasters have failed to respond to complainants in a timely manner and only replied when prompted to do so by the CBSC, the Adjudicating Panels have expressed their dissatisfaction with the broadcaster's responsiveness. 

For example, in TQS re Scheduling of Advertisements and Promos (CBSC Decisions 98/99-0212, -0213 and -0882, June 23, 1999), the broadcaster totally ignored the complainant's letter until the CBSC, following up on the issue months later, provoked a reply.  The Quebec Regional Panel stated that "the broadcaster [...] was on the verge of being in breach [of its membership responsibility of responsiveness] by not responding to the complaint of December 30 until prompted by the CBSC to do so." 

The CBSC was similarly forced to "chase after" the broadcaster for a response in CHIK-FM re Les Grandes Gueules (CBSC Decision 00/01-0486, April 5, 2002).  The CBSC had initially forwarded the complaint to the station for response in January 2001; it was only after numerous follow-up correspondence and telephone calls that the complainant and CBSC finally received a response in March 2002.  The Quebec Regional Panel criticized the broadcaster for its failure to co-operate in the resolution of the complaint. 

The Quebec Panel can do no differently on this occasion.  It considers that the broadcaster was on the cusp of breaching one of the responsibilities of membership of the CBSC.  It regrets that CHOM-FM was not more forthcoming in its communication with the complainant and trusts that the failure to conform to the process in which all other private broadcasters, with rare exception, participate, was an isolated event.  Members of the public who take the time to write of their concerns deserve the courtesy of a timely and thoughtful reply, quite apart from the issue of the established obligations under the CBSC Manual.  There is, needless to say, no obligation to agree with the complainant but the acknowledgment of the registration of a complaint is mandatory.  As this Panel stated recently in its decision in CJAD-AM re an episode of the Tommy Schnurmacher Show (logger tapes) (CBSC Decision 03/04-0089, April 4, 2005) 

That dialogue is not only a part of every broadcaster's CBSC membership obligations, it also represents the public's sense of security in the process of self-regulation. While broadcasters are always involved with the reaction of their audiences to what they put on air, this dialogue with a listener is the manifestation to the complainant of that involvement.

 

announcement of the decision 

CHOM-FM is required to:  1) announce the decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more with seven days following the release of this decision during the time period in which the song "Locked in the Trunk of a Car" by the Tragically Hip was broadcast; 2)  within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CHOM-FM. 

The Canadian Broadcast Standards Council has found that CHOM-FM has breached a provision of the Canadian Association of Broadcasters' Code of Ethics in its broadcast of the song "Locked in the Trunk of a Car" by the Tragically Hip on September 21, 2004.  By airing the song, which contained a coarse word, CHOM-FM violated Clause 9 of the CAB Code of Ethics which prohibits the broadcast of unduly coarse and offensive language. 

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