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 (
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,
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,
[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
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
The
husband and wife also sent a complaint directly to the CBSC.
Since winning
"a trip for two to a luxury hotel in
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
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
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
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
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,
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.