TQS re Call TV (version 1, round 2)

quebec regional Panel
D. Meloul (Chair), G. Moisan (Vice-Chair), Y. Bombardier, R. Cohen (ad hoc), M. Ille, J. Pennefather (ad hoc)

THE FACTS

A paid program named Call TV (of Austrian origin) has been broadcast in various languages and using local hosts in numerous European countries for more than a decade.  Montreal-based broadcaster TQS added a French-Canadian version of the program to its 2009 summer schedule (June, July and August).  Produced by Mass Response TV, which paid TQS for the broadcast time, Call TV aired Sunday to Friday.  From the beginning of June until July 25, the program aired from 11:00 pm to 12:30 am.  From July 26 until its final summer broadcast of August 30, the program’s duration was extended to two hours, namely, from 11:00 pm to 1:00 am.

The premise of the program was found in its name, Call TV; viewers were encouraged to call the on-screen 1-900 number, or text (SMS) the number given, with their solution to the various puzzles, games and contests that appeared on the screen in order to win cash prizes (each episode dealt with in this decision included two or three separate puzzles, games or contest segments) (the contestants, of course, were charged for their 1-900 call or text messages, that being the program’s source of revenue).  The value of each successful answer appeared at the bottom of the screen.  The amount usually began at $150 and gradually increased as time passed.  Three different women, Marie-Andrée Poulin, Évelyne Audet and Geneviève Meunier, hosted the program on alternating days.

After the first few weeks in June, each episode began with the following viewer advisory in audio and video formats:

[translation]

The following program is an infomercial presented and paid for by MASS RESPONSE.  If you have any questions, comments or wish to consult the rules, please contact them at:

website:            www.call-tv.ca

e-mail:              public@call-tv.ca

telephone:         1-888-627-7706

At the beginning of each episode, the host explained how the program’s automated telephone system functioned.  It was a 1-900 number, so she explained that each telephone call (unless the line was busy) and each text message would cost $1, and that callers had to be at least 18 years old to participate.  For example, on June 8, the host explained those arrangements in the following words at the beginning of the program:

[translation]

There are two ways to contact us. The first is by text message, so if you are a member of Rogers, Telus or Fido, send the word “tv”.  This is very important.  Do not type the answer; just send the word “tv” to 77977. At that time, your phone number will be automatically registered in our data bank and you may be called back to participate in the question, the game taking place, at that very moment, with the host. Otherwise, the second method is to simply phone us at 1-900-528-8000.  As in the case of, um, text messaging, your number may be chosen and we will call you back. But, you might also be even luckier and get through to the studio directly with me to answer the question.  Your chances of winning are the same whether you choose to phone or to send a text message.  The calls are truly chosen at random. Um, each message or call costs you one dollar.  If the line is busy you will not be charged.  You are only charged one dollar to participate when you hear an automated voice or my voice.  And, of course, you must be 18 to participate.

[…]

Eighteen years old to participate.  One dollar per call.  Don’t forget that if the line is busy you can try again as many times as you wish.  You are never charged. You are charged one dollar only when you get through and have the opportunity to participate.  If you hear a little voice speaking to you, you will be charged regardless of whether you win or not. Otherwise you are not charged.

The telephone and text message numbers remained on the screen throughout the duration of the program, as well as the information [translation] “$1 per text message, $1 per call”.  In addition, the following information scrolled across the top of the screen repeatedly:

[translation]

Participation is limited to those who are at least 18 years of age.  Winnings are not paid out to minors. …  Calls are chosen at random. …  NOTE: the actual amount of one’s winning may change throughout the program! …  You decide if a puzzle is easy or difficult. … Please note that calling does not guarantee your participation in the program.  Chance dictates whether your call is chosen or not. … You decide if a puzzle is easy or difficult. …  Be aware that text messages are possible only through Rogers, Fido, Telus AND NOW ALSO THROUGH BELL … You will find all the information concerning the program as well as the rules governing participation at the following web address: www.call-tv.ca.

The phone distribution services are working constantly to optimize the capacity of the phone lines.  We appreciate your patience and your understanding.  [Emphasis added.]

The names of apparent past winners of the Quebec version of the program and the amounts they had won scrolled across the bottom of the screen.

The CBSC received a total of 319 written complaints about TQS’s summer 2009 broadcasts of Call TV.  Many complainants did not provide enough information (that is, the date and time of a specific episode) for the CBSC to pursue the complaints.  Many also raised issues that fell outside the CBSC’s jurisdiction, such as errors on their telephone bills.  Any complaints that did raise relevant issues about on-air content and provided dates and times of specific episodes were treated under the CBSC’s normal complaints-resolution process.

The CBSC’s Quebec Regional Panel dealt with two of those complaints in an earlier Call TV decision, namely, TQS re Call TV (version 1, round 1) (CBSC Decision 08/09-1834 & -1856, August 11, 2009), which was released on August 19, 2009.  Following that decision, the CBSC received an additional nine Ruling Requests from other complainants relating to episodes of Call TV that were broadcast prior to the release of the first CBSC decision.

Those complainants raised a variety of issues in their correspondence, including the assurances made on-air by the hosts that callers would not be charged if the line was busy; the fact that there was always a long lapse of time before a caller got through for the last puzzle and then always at the very last minute of the program, even when the contest was very easy; and general concerns that the program was a dishonest scam designed to take people’s money (the full text of all correspondence can be found in Appendix).

Combined, the nine complaints identified 31 different episodes of Call TV that they considered problematic.  One of those episodes (namely, that of July 12) had already been adjudicated in the CBSC’s previous Call TV decision.  (There was, therefore, no need to deal with it again in the current decision.)  It should, however, be noted that none of the contests, games or puzzles reviewed in the current decision had been broadcast in the episodes considered in the first Call TV decision.  Although some may have been structurally similar to contests dealt with in the earlier decision, none was identical to those.

The hosts explained in each episode that the telephone system was “random”.  In every one of the episodes, the calls came in at a reasonable rate during the first contest.  During the second or third contest, however, there was always an extremely long lapse of time between the initial presentation of the contest on screen and any caller getting through to participate.  Invariably, even if the solution to the contest was very easy and obvious, no call came through until the last few minutes of the program, even when the host informed viewers that more “lucky lines” had opened up.  In many cases, the time elapsed before a call was as long as one hour or even an hour and a half (in the latter case, after the duration of the program had been extended to two hours).

Some of the complainants also identified specific contests that they felt were unfair.  Based on the reasons set out in the CBSC’s previous Call TV decision, many of the contests presented on the episodes identified by the complainants did not pose any problems.  The methodology of solving the puzzle was evident and there was usually an eventual winner.

One complainant mentioned a spot-the-different-picture contest on June 11 where he was unable to see the arm of one of the Bart Simpson pictures.  Another complainant said she was unable to see the right-most letter “A” in a grid on August 14.  In both instances, it appears that the complainants were simply viewing the program on a television set with a small screen with the result that parts of the images were cut off; the CBSC was able to see the full images clearly on its screens.

During a couple of episodes, there appeared to be some technical difficulties.  In one, the picture was lost for a few minutes even though the sound component remained audible.  In another, the audio and video were slightly out of sync.  These events appeared to be legitimate technical problems and not anything that TQS or Mass Response TV had fabricated to defraud callers, as was hinted at by the complainants.

There were, however, seven contests that required adjudication by the Panel.  The first was on July 6, where the first game required viewers to guess eight makes of automobiles that included the letter “A” anywhere in the name.  Callers succeeded with Toyota, Ferrari and Cadillac.  Host Évelyne gave some hints to viewers that finding the answers could be difficult:

[translation]

Please be aware that since we are in Vienna, Austria, makes and models can be European, Asian, perhaps North American.  Obviously, um, in Quebec we are accustomed to what is available in, in the north of America, in North America, so you need to think in broader terms. It can truly be models from anywhere in the world.  And, it can also be antique makes or makes that still exist. So, um, the ball is in your, your court.  I will tell you that a good way to find them is on the Internet, because all the books we have in Quebec, vehicle guides and such, deal mostly with North American makes and models.  While here, as I say, there is a mixture of everything. In fact, I don’t know them, but I do know my producers and I know what they are capable of doing.  Some are very easy.  Toyota was not one of the difficult ones. Toyota has already been named.  We expected it would be one of the first makes named. So, I’ll just warn you that some are going to be much tougher than others.  But, if you use the Internet, you will be able to figure it out, and, well, as you already know, the amounts increase as the game progresses.

She reiterated that viewers could search on the internet for other car makes.  No other callers provided correct answers, so she eventually revealed the remaining names on the list: Borgward, Trabant, Intermeccanica, Isotta-Fraschini and Marquette.

On July 10, the first game was “Count all the hearts” in an image of three playing cards.  The cards were a five, a nine and a six of hearts, but the manner in which the cards were fanned out in the image hid some of the hearts on two of the cards and there was also an extra heart-shaped outline surrounding the hearts that could have been considered a second heart.  Host Geneviève mentioned this as a clue.  A number of callers provided different answers, but none was deemed correct.  At the end of the game, Geneviève revealed that the answer was 225, but she did not explain how one arrived at this solution, and the answer was not apparent to any of the Adjudicators, notwithstanding the ample time and opportunity they had to consider the contest.

The first game of the July 22 episode also generated a complaint.  Callers were required to name items on a list of five “things Évelyne takes to the beach”.  Two callers won prizes with “sunscreen” and “beach towel”, but other callers with reasonable answers were unsuccessful.  Évelyne eventually revealed the remaining items: reading glasses (one caller had unsuccessfully guessed sunglasses), magazines, and floaters.

A game presented on July 27 involved a grid filled with letters in which callers had to find the names of animals.  The letters which were to be used in forming the animal names could not touch each other in their positions on the grid, whether horizontally, vertically or even diagonally.  Moreover, the names had to be the ones that Call TV producers had pre-selected and put in envelopes.  Two callers won by stating “chat” (cat) and “vache” (cow), but no other callers were successful.  After playing other games, Geneviève revealed the remaining answers at the end of the program: Shire (a type of horse), Pumi (a type of dog) and Kai (a type of Japanese dog).

On August 2, the first contest sought male names with the letter “A” as the second letter.  A similar game had been adjudicated in the CBSC’s previous Call TV decision.  In the earlier case, the host had assured viewers that the names sought were “well-known and common”, but when she revealed them at the conclusion of the contest, it was clear that they were not.  In the August 2 episode, host Évelyne made no such promises about the familiarity of the names; in fact, she mentioned that they could be foreign, implying that they could be expected to be unusual.  Three callers succeeded with the names “Marcel”, “Martin” and “Jacques”.  Another caller won with “Yannick”, but one complainant questioned this win because the name in the envelope was actually “Janick”.  The conversation with that caller, Pierrette, went as follows:

[translation]

Évelyne:           See what we’re doing in your case.  I don’t know what is in the envelopes, um, I will know it when you do. I’m told it is a bit different than what you said, but we will accept it anyway.

Pierrette:           I see.

Évelyne:           OK, we have “Janik” here [she holds up a sheet of paper]. But, you know, here in Austria it is pronounced “Yanik”; “J” is pronounced that way.  So –

Pierrette:           I have a nephew called Yannick.

Évelyne:           Well, there you go.  But, it can be written with a “Y”.

Pierrette:           Exactly.

Évelyne:           Exactly, but no problem.  We are giving it to you anyway because you did well. So, stay on the line, dear lady.  It gives me great pleasure and we are giving you five hundred dollars this instant.  Have a nice evening.  Thank you.  So, um, as you can see, things are going very well. We’ve had very few calls and already we’ve had someone who won a large amount.  In addition, don’t you think we are being generous by accepting the names when they are approximately the same? […]  Sometimes it’s difficult, sometimes it’s easy, sometimes both. You never know.  It depends on you.  I did personally find “Janik” difficult, but, um, well the lady has a nephew named Yannick, so she found the answer.  It depends, um, it’s up to you to decide if a game is difficult or not.  There is nothing, on my part at least, that can be done to control that.  […] What could be in there?  Should we be looking at names used in Quebec?  Should we be looking at foreign names?  There are no guidelines, so it’s up to you to come up with original answers.

[…]

So, “Janik” and “Marcel”.  So far, so good.  Nothing too complicated in this.  These are, um, well, common names.  It always depends on the people themselves.  I don’t find them easy, but they are nevertheless common. There was no catch or a high degree of difficulty, um, so there it is; they are, are names requiring some brain work, but you can do it.  That is certain.  They are names we have in Quebec.  Um, if you are just joining us, I repeat that for “Janik” that you see in the eighth position, the lady said “Yannick”.  We accepted it because, well, for us in Quebec, um it’s the, the same difference in the end.  It’s just the way of pronouncing the “J”.  Here in Austria, the “J”, if I’m not mistaken, produces, the, the, the, “Y” sound for us in Quebec.  So, naturally, we accept the answer.

[…]

And, um, there aren’t really any clues I can give you because there are many names having “A” as the second letter.  Now, well, chance will determine if your ideas are, um, found in our envelopes.  We have preselected them and put them in.  By “we”, I mean the producers.   I don’t know what is in my envelopes.  The answers are in those envelopes and you must obviously match what they contain to win the amount shown at the bottom of the screen. It complicates the game a bit, but there is nothing we can do. Chance will determine if your answer matches ours.  So, um, well it’s just a matter of trying.

At the end of the program, Évelyne revealed the names that had not been successfully guessed with the following explanation:

[translation]

There isn’t much time left in the program, so I’m quickly going to, I will open the envelopes for the first game.  We were looking for men’s names having “A” as the second letter: [she shows what is in the envelopes] “Hamo”.  It is not as well known in Quebec.  “Gauvin”, which is both a surname and a first name in Quebec.  I also have “Gaspard”, that we are very familiar with.  And three others remain.  “Camil” or Camille, both are good, always with the second letter being an “A”.  We had “Bastien”, and finally “Baptiste”.  Those, then, are the names we were looking for in the first game.

Marie-Andrée was the host on August 19 and the first contest was “What does Marie buy at the supermarket?”  Callers were required to guess six items on a list of such things that started with the letter “C”.  Marie-Andrée explained the game as follows:

[translation]

And I will tell you right away that these are things you are familiar with and that can easily be found in any good grocery store.  No need to be looking in specialized grocery stores or fine food stores, markets where products from other countries can be found.  These are truly items that can be found everywhere in any good Quebec grocery store.

[…]

Just simply go for it.  I will tell you right away that it may seem easy, but it isn’t as easy as all that.  […] You know, the degree of difficulty for each game varies with the individual.

Two callers won with “chocolate” and “cereal”, but no others were successful despite such reasonable guesses as carrots, celery, coffee, cucumbers, croissants and so on.  The host eventually revealed the remaining items: couscous, Calvados, Coke and Camembert.  The complaint was that one cannot purchase Calvados at supermarkets in Quebec because it is a spirit.

On another episode in August (either the 5th, 12th or 26th – the complainant sent her own copy of the program without noting the exact date, but the host stated that it was Wednesday), Évelyne sought a list of 10 animal names that include the letter “A”.  Callers won prize money with answers “chat” (cat), “vache” (cow), “lapin” (rabbit) and “hamster”.  At one point, a caller guessed “canard” (duck) and was told that it was not on the list.  Later in the program, another caller (who apparently had not heard or made note of previously-guessed animals) again suggested “canard”.  This time, Évelyne awarded the caller the prize because, she explained, the word “cane”, which in French is the word for female duck, was on the list.  At the end of the program, she also revealed the remaining names of the animals that had not been guessed: Akita (a type of dog), Bavarois (a type of horse), Ceylan (a type of cat), Kuvasz (a type of dog) and Manx (a type of cat).

It should also be noted that TQS responded to all of the complainants.  Depending on when TQS responded, the complainants received different letters.  Prior to the release of the CBSC’s first Call TV decision on August 19, TQS sent letters referring complainants to Mass Response TV and indicated that TQS had no control over the content.

[translation]

Call TV is a program that is presented and paid for by Mass Response TV.  The latter is required to comply with all applicable regulations.  As TQS is merely the means of broadcasting this paid program, we advise you to contact Mass Response TV for information on all conditions and procedures, regulations and verifications applying to this program.  You can contact them by e-mail at public@call-tv.ca or via their toll-free number at 1-888-627-7706.

The fact that TQS broadcasts the program does not mean it endorses its content.  As in the case of commercials for various products, the fact that TQS runs the commercial for a given product does not mean that it has verified the quality of that product. That would be a very heavy burden to impose on any broadcaster.  For this reason, we broadcast an advisory prior to airing the program that read as follows: “The following program is an infomercial presented and paid for by MASS RESPONSE.  If you have any questions, comments or wish to consult the rules, please visit their website at www.call-tv.ca or e‑mail them at public@call-tv.ca.”

Between August 19 and the program’s final episode of the summer, TQS sent a modified version of that letter, but one that still deflected the broadcaster’s own responsibility:

[translation]

[W]e wish to emphasize that Call TV is a program presented and paid for by Mass Response TV.  The latter is required to comply with all applicable regulations.

For information on all conditions, regulations and verifications that apply, we advise you to contact Mass Response TV.

After August 30, complainants were generally informed that the program was no longer on the air.  Copies of the letters sent to the nine complainants in this decision can be found in the Appendix.

In November 2009, TQS (by that date the broadcaster had been rebranded as V) sent the CBSC some information regarding the telephone system for Call TV.  Those documents can also be found in the Appendix.

THE DECISION

The Quebec Regional Panel examined the broadcasts under Clause 12 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics relating to contests and promotions.  That Clause reads as follows:

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

The Panel also noted that one of the Background principles of the Code reads as follows:

Each broadcaster is responsible for the programming of the licensed station, network or service.

The Panel Adjudicators read all of the correspondence and viewed recordings of the program.  The Panel concludes that TQS violated Clause 12 of the CAB Code of Ethics.

A Second Decision: The Explanation

As indicated earlier in this decision, the CBSC received a large number of complaints about Call TV, the program TQS added to its broadcast schedule for the summer of 2009.  During the period of preparation for the adjudication and the drafting and release of the first decision, complaints continued to flow (up to, and even after, the initial three-month broadcast of the program ended on August 30).  As noted above, Ruling Requests were received from nine of the complainants after the adjudication and (not noted above), in the case of eight of the nine, after the release of the decision, some a couple of months after that date.  Although the first CBSC Call TV decision dealt with the substantive analysis of the contest provisions of the CAB Code of Ethics applicable to this type of programming, the Quebec Panel believes that the individual complainants whose Ruling Requests arrived too late for consideration at that time are nonetheless entitled to a CBSC evaluation of their complaints.  The present decision will respond to that entitlement, based, however, on the principles established in the first Call TV decision.

The Panel is also conscious of the fact that the broadcaster has responded to the principles established in that first decision in part by not renewing the broadcast term of Call TV before such time as the producers could revise the program to conform to those principles.  The Panel also understands that it could not expect that the broadcaster would have modified its programming to reflect the Quebec Panel’s prior decision in the challenged episodes treated in this second Call TV decision, since those episodes were from the same period.  The conclusions of this decision reflect that reality.

Broadcaster Responsibility for Everything Broadcast

The Panel notes that, as with its response to the complaints dealt with in the first Call TV decision, TQS continued to refer most of the present complainants to the producer, Mass Response TV.  When the show was no longer being broadcast (that is to say, after August 30, 2009), TQS continued its explanation in a similar way, adding that the show was no longer being broadcast, but never acknowledging its own responsibility for the broadcasts.  The Panel can do no better than to refer to its conclusions on this point laid down in the initial Call TV decision:

TQS’s attempt to avoid responsibility for any content issues associated with Call TV and the attempt to pass it along to the producer of the paid programming, designated as Mass Response TV, cannot succeed.  The private broadcasters’ own Code of Ethics provides, in the Background section, “Each broadcaster is responsible for the programming of the licensed station, network or service.”  Moreover, this is entirely consistent with the statutory obligation of all licensed broadcasters under Section 3(1)(h) of the Broadcasting Act, which establishes broadcast licensee responsibility for everything each broadcaster airs.

Off-Air Issues

Here, too, the Panel need do nothing more than cite its position on the off-air aspects of complainants’ concerns set out in its earlier Call TV decision.

The complaints made to the CBSC cover a very broad range of issues, touching on callers’ frustration with the inaccessibility of the program personnel (whom they were induced to call); the bills, sometimes amounting to hundreds of dollars, received by callers; the allegation that these bills included charges for calls they did not succeed in making (e.g. calls resulting in busy signals, for which hosts had assured the audience on air they would not be billed); the apparent unfairness of some, at least, of the contests; misrepresentations made by the hosts regarding some of the contests; the inexplicable frequent absence of calls for relatively long periods, and sudden, last-second success in callers getting through; and so on.

Those issues which arise from the broadcasts themselves fall within the mandate of the CBSC.  The Panel can deal with the broadcast of the various contests and the representations of the hosts during the programs, and it will do so in this decision.  The Panel cannot, however, deal with the off-screen operations of Mass Response TV or the fairness of the billing by the various telephone companies for the 1-900 calls or the text messaging.

The Nature of the Challenged Program

As noted above, each of the challenged episodes began with a viewer advisory to the effect that “[t]he following program is an infomercial presented and paid for by MASS RESPONSE.”  This was, of course, the case with the episodes dealt with by this Panel in the first Call TV decision.  As this Panel stated on that occasion,

In the broadcaster’s terms, it was an infomercial.  This is not, however, the view of the Quebec Regional Panel.

[…]

An infomercial is, in effect, an extended commercial, running for a much longer period of time than a traditional commercial, often thirty or sixty minutes.  The goal of both is the same, namely, to sell a product or a service.  The extended duration of the advertising message in an infomercial provides the opportunity for the vendor to expand the description of the product or service; hence the “info” part of infomercial.  While infomercials may occasionally be presented in the guise of an entertainment format, their primary goal is to induce callers to place orders for the purchase of the product or service they are hawking.

While the goal of Call TV is to induce persons to call, the program’s goal is not to sell any product; it is to make money from the calls placed or texts sent by the participants.  The question for the creators of the program was likely, “What is the best method for us to induce people to spend money on 1-900 calls or texts?”  They appear to have concluded that it was to create a series of contests.  In any event, the view of the Quebec Regional Panel is that Call TV takes, in the sense of Clause 12 of the CAB Code of Ethics, the form of an on-air contest, and is thus subject to the requirements of that Clause.  That is to say, the contests (there were several of them on the four days of challenged programming) must: a) be conducted fairly and legitimately; b) not be misleading; and c) must ensure that any prizes offered or promises made are what they are represented to be.

Those principles continue to be applicable in the Panel’s treatment of the current challenged episodes.

The Compliance of the Call TV Contests with Clause 12

As noted above, there were in the end seven challenged contests considered by the Panel on this occasion.  Of these, six were of a rather arbitrary but structurally acceptable nature.  They were contests in which callers were challenged by the broadcaster and producers to guess what was on their lists, including in the various cases: makes of automobiles, names of animals, male names, what Évelyne would take to the beach, or what Marie-Andrée would buy at the supermarket.  While the Panel has found problems with some of these that will be discussed below, they found none based on the structure of the contests.  That said, the Panel finds it curious that callers would take a far-flung shot at rather wide-ranging, essentially unlimited lists of things, but that is their right.  It is absolutely fair for broadcasters to offer such a “needle in the haystack” contest and for audiences to proffer their guesses, given that opportunity.

In the previous Call TV decision, there was a contest of the foregoing nature that greatly troubled this Panel.  It was a contest to guess the ten male names on the producers’ list (i.e. in the envelopes held by the host).  Difficult enough, to be sure, but the producers caused even more of a problem for the callers than the Panel believed was necessary or, more important, fair.  As this Panel observed:

While it might have been fair and legitimate to simply suggest to the audience that they take their best shot at guessing which ten names were in the envelopes held by the host, the producers may have thought that this would not have generated enough callers or texters.  After all, their interest was in generating the maximum number of one-dollar contributors.  Consequently, in order to induce people to believe that they had a chance, the host continually made the point that the names were familiar, simple, known, common, etc.  They were not.  In a tactic reminiscent of the annoying, gloating, oddly-named dwarf in the Brothers Grimm fairy tale Rumpelstiltskin (well-known in its original German and English-translated versions, perhaps less known in its French version, Le Nain tracassin), the Call TV team developed a list of anything but common names.  While the correct guesses Marc, David, Jacques and Laurent all fell easily into the familiar, known, common category, the remaining Pancho, Hakan, Gabor, Darko, Lamar and Nanno did not.  Like the name Rumpelstiltskin, they were obscure, remote and extremely uncommon to the audience at which the French-Canadian incarnation of Call TV was aimed.  This contest was nothing short of misleading and thus in violation of Clause 12 of the CAB Code of Ethics.

In a corresponding situation in the matter at hand, callers were invited to guess eight makes of cars that included the letter “A” anywhere in their name.  Rather than inducing the audience to believe that the contest was a “slam-dunk”, the host made it clear that finding the answers could be the opposite, that is, very difficult.  The car models could be European, Asian or North American.  They could be current or antique, i.e. no longer manufactured.  She even attributed some “wink, wink, nudge, nudge” malevolence to her producers.  In other words, this would not be a cake-walk.

[translation]

Please be aware that since we are in Vienna, Austria, makes and models can be European, Asian, perhaps North American.  Obviously, um, in Quebec we are accustomed to what is available in, in the north of America, in North America, so you need to think in broader terms. It can truly be models from anywhere in the world.  And, it can also be ancient makes or makes that still exist. So, um, the ball is in your, your court.  I will tell you that a good way to find them is on the Internet, because all the books we have in Quebec, vehicle guides and such, deal mostly with North American makes and models.  While here, as I say, there is a mixture of everything. In fact, I don’t know them, but I do know my producers and I do know what they are capable of doing.  Some are very easy.  Toyota was not one of the difficult ones. Toyota has already been named.  We expected it would be one of the first makes named. So, I’ll just warn you that some are going to be much tougher than others.  But, if you use the Internet, you will be able to figure it out, and, well, as you already know, the amounts increase as the game progresses.

It was anything but easy.  There were obscure makes, as well as easy ones.  Only three of the eight were uncovered; five were extremely difficult.  From the point of the view of the Panel, however, the contest was entirely fair.  No-one was misled.  The audience was advised and informed.  Those who called took their chances.  The contest fell comfortably within the contest standards established in Clause 12.

Nor did the Panel find any difficulty with the contest to guess male names with the letter “A” as the second letter.  Unlike the corresponding contest in the first Call TV decision, there was no misleading statement about the common nature of the names on the list.  If anything, host Évelyne did note that they could be “foreign”.  Following a not unfamiliar pattern, three names guessed were quite easy and familiar.  The others were more difficult.  That said, in one case, she did show flexibility in accepting “Yannick” for “Janik”, the name in the envelope.  The remaining six names were more uncommon, but here again, the Panel finds no problem with the contest, as no misleading statements or invitations were offered by the host.

Nor was there any problem with the things that Évelyne would take to the beach.  Perhaps snowshoes, snow skis or a winter parka would have been a problem on what could theoretically be an unlimited list, but there were no such obscurities in the contest as broadcast.  It was unlikely that callers would have uncovered all of the producers’ choices, but the contest was fair.

That was not, however, the case with the things beginning with “C” that Marie-Andrée would buy at the supermarket.  While she again attempted to disclose the facility or difficulty of the possibilities, the script she was given resulted in a misleading piece of information for the market at which the show was aimed.  She said, [translation] “I will tell you right away that these are things you are familiar with and that can easily be found in any good grocery store.  No need to be looking in specialized grocery stores or fine food stores.”  When, at the end, she revealed that one of the unguessed items was Calvados, it was clear that the contest was misleading, as Calvados, an alcoholic product, is only available at Government-controlled liquor outlets and not in any good grocery store in Quebec.  That contest was in breach of Clause 12 of the CAB Code of Ethics.

As to the two remaining contests of this type, namely, the names of animals (in one case with the letter “A” anywhere in the name and, in the other, made up of letters from a grid of letters provided on-screen), the Panel also has some difficulty.  In both cases the producers sought the “names of animals”.  In the first contest, callers won by guessing “chat” (cat) and “vache” (cow), but no other callers succeeded.  In the end, the unguessed names were Shire, which is a breed of horse, and Pumi and Kai, both breeds of dogs.  It is clear that horse and dog would have been acceptable answers (had the appropriate letters been on the grid in the first of those two animal-naming games), as would hundreds, if not thousands of other names (including those of the mammal, fish, bird, reptile and insect worlds).  But, in a contest in which callers are induced to spend money to enter, the Panel considers that the producers and, of course, the broadcaster, have more of a duty to the persons they tempt into the fold.  Had the contest sought the names of breeds of animals (as the earlier contest seeking makes of cars rather than, say, methods of transportation), this would have been an acceptable result.  In this case, it was not.  Callers were misled by a contest seeking the names of animals and they could, so to speak, have guessed until the cows came home, without ever landing on the producers’ choices.  This principle is equally applicable to the second animal-naming contest, in which the winning choices were “chat” (cat), “vache” (cow), “lapin” (rabbit), “hamster” (hamster) and “canard” (duck), but the unguessed names Akita, Bavarois, Ceylan, Kuvasz and Manx were all names of breeds rather than of animals, as the contest led the callers to believe they were investing their dollars in.  The Panel finds the two foregoing contests unfair and in breach of Clause 12.

The Panel also finds a problem with Évelyne’s mid-course change in the second animal-naming contest.  At one point, a caller guessed “canard” (duck) and was advised by the host that it was not on her list.  Later in the program, another caller (who had presumably missed that rejected answer) once again guessed “canard”, but, on this occasion, Évelyne accepted it, explaining that the answer she had, namely, “cane” was simply the female gender of “canard” (in English, the same word “duck” is also the female gender of the species).  Consequently, she concluded that the answer “canard” was acceptable on this occasion.  The Panel finds that this change of position rendered the contest unfair for the person who had guessed correctly, having paid to do so, and this was in breach of Clause 12.

The remaining contest was the “Count all the hearts” contest.  There were no successful contestants and, at the end of the day, the only revelation by host Geneviève was that the answer was 225.  No explanation was provided regarding the method of arriving at the solution, and, as in the first Call TV decision, none of the Adjudicators was able to justify, explain or understand the answer, without any time pressure whatsoever and having the answers in front of them as provided by the host at the end of the contest.  This once again raised doubts in the minds of the Adjudicators as to the legitimacy of the puzzle, but, as in the first Call TV decision,

what is more important to them is the inherent absence of transparency for the audiences.  Audiences ought to be able to know or understand the rules of a contest and the transparency of the outcome, particularly when they are being asked to spend money to enter them.  The rule can be the seeking of a particular fact or piece of information, in which case the disclosure of the verifiable fact or information is the transparent element.  The rule can be the guessing of a number, as in Government-run lotteries, in which case the revelation of the numbers falling out of a basket is the transparent element.  The rule can be that a disclosed committee of individuals will judge the dancing, singing or other skill set of an individual or group.  And so on.  Where, contrary to the reasonable and customary examples of the foregoing contests, the inherently dubious outcome is neither evident nor explained, the Panel considers that the absence of transparency renders the conduct of the contest neither fair nor legitimate, as required by Clause 12 of the CAB Code of Ethics.

In conclusion, the Panel finds that the absence of transparency in the “Count the hearts” game renders the contest neither fair nor legitimate and, consequently, in breach of Clause 12.

Broadcaster Responsiveness

The CBSC considers, as a part of every decision, whether the broadcaster has complied with its obligation to respond appropriately to the complainant’s concerns. 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 viewer or listener is the manifestation to the complainant of that involvement.  In this case, the Panel has faced a most unusual situation, one in which the broadcaster has responded, true, but appears to have tried to pass the responsibility for the broadcast content to others.  That is both unfair and unreasonable.  TQS, indeed all broadcasters, must be aware of their responsibility for everything they broadcast.  This is not a case of the broadcaster arguing, say, that its news report was fair and accurate when a complainant has argued that it was not.  This is a case of the broadcaster ducking any discussion of the substantive issue of fault for content and arguing rather that the whole business was someone else’s fault and problem.  In the fullest sense of what the CBSC expects from its members for the benefit of the public, TQS has let the side down, but, on this occasion, which is to all intents and purposes the same as the corresponding circumstance in the case of the responses to the complainants in the first Call TV decision, the Panel is prepared not to find a breach of the obligation of responsiveness because it did respond.  As this Panel said in the earlier decision, and as it repeats in this decision, that would not be its conclusion on a future occasion, if any, on which the broadcaster attempted, in its response to a complainant, to duck its responsibility for anything it had broadcast.

The Panel does also wish to note that TQS (at that point transformed into V) took the step of supplying the CBSC with documents received from telecommunications-related companies subsequent to the first Call TV decision.  These dealt with matters of concern to many of the complainants and, even though telephone billing practices do not fall within the mandate of the CBSC, the broadcaster’s furnishing of those documents was helpful to the process.

Announcement Of The Decision

It is customary in the case of Panel decisions rendered against a broadcaster for the broadcaster to be required to make an announcement of the CBSC Panel’s findings.  In its decision in OMNI.1 re an episode of the Jimmy Swaggart Telecast (CBSC Decision 04/05-0097, April 19, 2005), the Ontario Regional Panel explained the rationale for that position in the following terms:

There is almost no exception to the principle that a broadcaster found to have breached a code or a condition of membership in the CBSC must announce the decision in the terms specified by the Council.  That being said, in the rare circumstances in which a broadcaster had already taken concrete steps to acknowledge its error and rectify the situation, the CBSC has not necessarily required an announcement of the Panel decision.

In that decision, the Ontario Panel reviewed the circumstances that led to similar conclusions in CJMR-AM re the Voice of Croatia (CBSC Decision 92/93-0205, February 15, 1994) and CHUM-AM re Brian Henderson Commentary (CBSC Decision 95/96-0008+, March 26, 1996).  It also explained, in CFTR-AM re Dick Smyth Commentary (CBSC Decision 95/96-0062, March 26, 1996), that the broadcaster, on the basis of its voluntary on-air apologies, had no further obligation to make the customarily mandated CBSC announcement.  The circumstances of the matter at hand are, however, even more similar to those arising in another pair of decisions involving a different broadcaster.  In Showcase Television re an episode of Queer as Folk (Episode #209) (CBSC Decision 01/02-0759, February 28, 2003), it was an administrative error that prevented the March 18, 2002 episode of Queer as Folk from being treated at the same time as that of November 12, 2001, which had been dealt with by the National Specialty Services Panel in Showcase Television re an episode of Queer as Folk (CBSC Decision 01/02-0217, September 13, 2002).  Following the first decision, Showcase Television was required to make the customary broadcaster announcement.  The second decision dealt with the same issues and both episodes should ordinarily have been dealt with in the first decision.  Naturally, the Panel conclusion on the substance of the second file was the same, but the Panel did not require a second announcement in the circumstances.

Both complaints, and now both decisions, dealt with the same issues, namely, the sexual content and the provision of viewer advisories.  In accordance with the requirements of the first Queer as Folk decision, Showcase announced that it had breached Article 5.1 of the CAB Violence Code in its broadcast of the program on November 12.  Since the National Specialty Services Panel comes to the same conclusion with respect to the currently challenged broadcast and since the broadcaster had no opportunity to modify its viewer advisory policies for this broadcast following the first decision, it finds that there is no need to repeat a similar announcement with respect to this decision.

The Quebec Regional Panel considers the present circumstances to be almost identical.  The complaints in both Call TV decisions related to the broadcast of the program in the same time period and were substantively similar.  The Panel’s conclusions are based on the very same principles.  The broadcaster took the step of removing that initial incarnation of the program from the air.  The Quebec Panel does not consider that anyone’s interests would be served by requiring an announcement of the same Code breaches.  Moreover, it concludes that such an announcement might cause unnecessary confusion among members of the public.

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