THE FACTS
On July 14, 2000, the program The Touch of Health, a radio talk show whose host answered questions and gave advice concerning alternative health matters, was removed by CFYI-AM (North York) from its programming schedule. On July 20, the host of the program sent a letter of complaint to the CBSC (the full text of which can be found in the Appendix hereto), stating, in part, that "[t]his action against the show and it being taken off the air is a direct social and political assault against natural / alternative health." In her view, "[w]ith the inevitable loss of the Touch of Health radio show, there will be a loss of ‘balanced’ broadcasting in this sector."
The broadcaster responded to the complainant in a letter dated August 8, which was only faxed to the CBSC on September 28. (The full text of that letter is also included in the Appendix below.) In support of its claim that the decision to remove the program did not affect the balance of its programming, the broadcaster stated:
[W]e have removed all medical (traditional and non-traditional) programs from our week-end programming. As I shared with you, the rationale for this is two-fold: first is the concern over legal liability with respect to giving medical advice. The second reason is our desire to improve the quality of our weekend programming in order to generate increased ratings and revenue.
On August 4, the complainant indicated that she was unsatisfied with the broadcaster’s response and requested that the Ontario Regional Panel rule on the matter. Customarily, the CBSC does not deal with Ruling Requests which are received prior to the receipt of the broadcaster’s response, to which the Council assumes the Ruling Request is a reaction. In this case, however, the CBSC Secretariat made an exception given the complainant’s subsequent e-mail dated October 11 expressing her dissatisfaction with the broadcaster’s response.
THE DECISION
The CBSC’s Ontario Regional Panel considered the complaint under Clauses 6 and 7 of the CAB Code of Ethics, which read, in pertinent part, as follows:
CAB Code of Ethics, Clause 6, Paragraph 3
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.
CAB Code of Ethics, Clause 7 (Controversial Public Issues)
Recognizing in a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of member stations to treat fairly, all subjects of a controversial nature. Time shall be allotted with due regard to all the other elements of balanced program schedules, and to the degree of public interest in the questions presented. Recognizing that healthy controversy is essential to the maintenance of democratic institutions, the broadcast publisher will endeavour to encourage presentation of news and opinion on any controversy which contains an element of the public interest.
The unusual nature of the complaint meant that there was not a program tape to listen to. In the circumstances, Panel Adjudicators reviewed all of the correspondence, considered it in terms of the aforementioned Code provisions and conclude that the station’s decision to remove the program The Touch of Health is not in breach of any of them.
Balanced Programming
This decision marks the CBSC’s first opportunity to deal with the broadcaster’s duty to maintain balance via its programming schedule. While the CBSC has dealt with the issue of internal balance in the context of a specific program, it has never before been asked to review a broadcaster’s selection of programs in order to ensure that various points-of-view are represented.
In either case, the application of the Code provisions relating to balance does not differ substantially. In a case of internal program balance, namely, CHOG-AM re The Shelley Klinck Show (CBSC Decision 95/96-0063, April 30, 1996), the Ontario Regional Panel combined the effect of Clauses 6 and 7 of the Code of Ethics in the following way. It said:
Although the Council recognizes that Clause 6, paragraph 3 and Clause 7 of the Code of Ethics offer different nuances, it considers that their combined effect is to require balanced programming when dealing with controversial issues. Accordingly, rather than considering each provision individually, the Council is of the view that it may deal with the "balance requirement" as a whole.
In that decision, the Panel was dealing with a complaint concerning the fairness and balance of an open-line discussion entitled "Women who falsely accuse men of rape". In finding no Code breach, the Panel made the following comments regarding a broadcaster’s responsibility to ensure balance:
Generally, the format of open-line programs has the potential of offering an opportunity for balance; however, the Council recognizes the important role of the host (and the producer) in ensuring balance. They wield considerable power in terms both of the choice of callers who get to air and the ability of the on-air host to cut off callers at will. The Council finds that, in this case, Ms. Klinck made a valiant effort to achieve balance in the treatment of the controversial issue chosen as a topic for the show. As in the case of CFRA-AM re Steve Madely (CBSC Decision 93/94-0295, November 11, 1994), her success may have been limited but this may have been a matter beyond her control. In the Steve Madely decision, the Ontario Regional Council interpreted the requirements of clause 7 in the following way:
In terms of the requirements of that clause, the broadcast publisher, through its host, was, as required, endeavouring to "Encourage presentation of news and opinion" on a controversial subject. The host’s problem was, in his view, that the audience was not interacting, not that he was refusing access. Furthermore, he returned to the subject once his dramatic stratagem pulled the listeners back into the dialogue.
In this case, the Council is of the view that the host encouraged a balanced presentation and discussion of the issue of false accusations of sexual assault. The public had been given the opportunity to call in and comment, and the host herself tried to balance the viewpoint of her guest. As a result, the Council finds that the program did not violate clauses 6 and 7 of the CAB Code of Ethics
While balance may be achieved within the program in question, the CBSC has established, as a general rule, that balance in dealing with a controversial public issue may be achieved through the overall programming of the broadcaster. As long ago as its decision in CTV re an episode of The Shirley Show (CBSC Decision 93/94-0261, August 18, 1995), the Ontario Regional Panel put that point in the following terms:
Reflecting the CRTC’s policy, it has been the view of the CBSC that a program dealing with a controversial issue need not have built-in balance. Broadcasters are entitled to balance biased programming by presenting the other side of the issue on other programs dealing with the same issue. If an individual program is not internally balanced, the Council may need to look at the overall programming provided by the broadcaster in order to see whether the broadcaster has met its responsibility pursuant to Clause 7 of the Code of Ethics.
In the present matter, the Panel is of the view that the broadcaster has achieved balance in its overall programming. Based on the information provided to the Panel, CFYI has provided balanced programming in this area at all material times. While The Touch of Health was being broadcast by CFYI, balance was maintained between programs that provided traditional health information and those that provided alternative health information. Since CFYI’s decision to cancel the program in question, the Panel relies on the broadcaster’s statement that "[CFYI] has removed all medical (traditional and non-traditional) programs from [its] week-end programming." For the reasons discussed below, the Panel accepts the broadcaster’s decision to meet its obligations by removing all programming dealing with that particular issue.
Programming Choices
With respect to this issue, namely, the choice of the programming which makes up a broadcaster’s schedule, the Panel must make it very clear that such decisions are primordially the responsibility of the broadcaster. They reflect a mix of commercial, creative and societal values and concerns, supplemented by a measure of programming instinct. They constitute the formula which is the basis of every broadcaster’s carving of its niche in the marketplace. They are a part of every broadcaster’s determination of those factors which will differentiate its programming from those of other licensees in order that it will be able to attract its own audience. Broadcasters are, needless to say, also entitled to make judgments as to the quality of their programming without those judgments being challenged except, in a sense, by the reception of the programming choices by the marketplace. It is hardly for the CBSC to supplant that quintessential broadcaster judgment unless the circumstances and apparent rationale for the broadcaster’s decision are clearly so dire and egregious that CBSC intervention is, by any reasonable assessment, called for.
Moreover, it should be borne in mind that broadcasters are required to abide by specific broadcasting requirements, as set out in the various legislative instruments and codes that apply to this industry. For instance, subparagraph 3(1)(d)(ii) of the Broadcasting Act requires that broadcasters must, among other things,
encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view.
In addition, Section 2(3) of the Broadcasting Act expressly recognizes that broadcasters have a right to "freedom of expression and journalistic, creative and programming independence."
In this case, it appears that CFYI’s decision to remove The Touch of Health fits into a general plan to reorganize its programming schedule with respect to matters of health. It provided reasons for the decision to remove the show which are, on their face, entirely reasonable. There is not a shred of indication that the reason was other than as stated in the broadcaster’s reply and the Panel has dealt above with the issue of balance in programming. In the present matter, the Ontario Regional Panel considers that CFYI’s decision to remove The Touch of Health from its programming schedule does not violate any Code provisions.
Broadcaster Responsiveness
In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In this case, while the Panel would have preferred a more comprehensive explanation of the station’s efforts to maintain balance in its programming, it considers that CFYI’s response addressed the issues raised by the complainant fairly. Nothing more is required. Consequently, the broadcaster has fully complied with the Council’s standard of responsiveness.
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.