The Roz and Mocha Show is the morning show on CKIS-FM (KiSS 92.5, Toronto), which airs from 5:30 to 9:00 am and contains the usual mix of songs, traffic and weather reports and banter between the two male hosts, Roz Weston and “Mocha Frap”. The station plays contemporary pop music with a focus on “rhythmic” songs, such as R&B, hip hop and dance. At approximately 7:50 am on August 13, 2010, a young listener telephoned the station to request a song. The following dialogue between the two hosts and the young caller ensued:
Mocha: Good morning, KiSS 92.5.
Noah: Um, hi, my name’s Noah.
Roz: Hi, Noah.
Noah: I’d like to request –
Roz: Boy “Noah” or a girl “Noah”?
Noah: Uh, I’m a guy.
Roz: Okay. How old are ya?
Noah: Ten. Um, –
Roz: You’re very articulate and well-spoken for a ten-year old.
Noah: Um, okay, sure.
Mocha: Hey, Noah.
Mocha: Do people make Bible jokes with you?
Noah: Yeah, sometimes.
Mocha: About building an ark and –
Noah: Yeah, they make jokes about me building a ship.
Mocha: – gettin’ them animals two by two.
Roz: Hey, do you, do you have a dog?
Noah: No, I have a cat.
Roz: You have a cat?
Noah: I used to have a snake and I have a fish.
Roz: Do people ever come over and they see your cat and they’re like “Hey, where’s the other cat?”
Noah: Uh, I think my friend did that once.
Roz: Yeah, ’cause you’re supposed to have two, right?
Roz: Are your parents super religious?
Noah: Um, actually, no.
Roz: Why they’d name you “Noah”?
Noah: Uh, ’cause, well, I don’t know.
Mocha: ’Cause they think when 2012 hits and the world’s gonna end and we get flooded that you’re going to be the one to save us all by building an ark?
Noah: There’s, like, a lot of other Noahs, so I highly doubt that.
Roz: Well, I know, yeah. Maybe they’re gonna get all you Noahs together to build the ark.
Roz: I just find that an unusual name for a non-religious family, that’s all.
Roz: Like, “David” you understand and, you know, like, all, there’s a lot of Bible names that are, that are okay.
Roz: “Job”. [Mocha laughs] Um, but –
Mocha: Hey, Noah?
Mocha: Um, so, when 2012 hits and you and all the other Noahs get together and build that giant ark, will Roz and I each get a ticket to –
Noah: Yeah, yeah, you guys get to be on the ark.
Mocha: Okay, cool.
Roz: That’s what we used to call, how old are you?
Roz: When I was a kid, don’t tell your parents we’re talking about this, okay?
Noah: Okay, sure.
Roz: I find it funny still to this day. I’m 35. Whenever I hear the word “ark” –
Roz: I giggle.
Roz: ’Cause when I was a kid around Noah’s age, like 10, 11, that’s what me and my buddies used to call boners.
Mocha: [laughs] Really?!
Roz: We used to call it “gettin’ an arc”. [laughs]
Mocha: Doin’ them ladies two by two. [laughs]
Roz: Doin’ ladies two by two. [Mocha laughs] No, I think it was more because it hooked like it had an arc in it, right?
Mocha: It hooked?! What kind of wiener do you guys have?!
Roz: Shut up! We weren’t –
Mocha: Wait, do all white guys, like, have an arc?
Roz: Of course.
Mocha: All of you guys?
Roz: Yeah. Hey, uh, Noah?
Roz: Are you a white kid or a brown kid?
Noah: Uh, I’m, well, I’m Canadian.
Mocha: Okay, so you’re white.
Roz: Okay. So, so you’re a white guy?
Noah: Y-, yes.
Roz: Yes. See, his wiener hooks too.
Mocha: See you in a year and a half when, when that ark’s done.
Noah: Uh, okay.
Mocha: We’re gonna hold you to that promise, you know.
Noah: If it happens, sure.
Mocha: No, it will. I ain’t dying in no flood. [Roz laughs]
On the day of the broadcast, a listener filed a complaint with the CBSC in which he explained his concerns about the conversation (the full text of all correspondence can be found in the Appendix):
At 7:51 am on August 13/2010, they had an inappropriate and offensive conversation with a 10-year-old male caller who identified himself as “Noah”. During this conversation, they belittled his name, questioned his religion, colour and origin. They then had a conversation regarding erections with this innocent 10-year-old child. This offensive conversation is against the Ontario Human Rights Code and should not be tolerated by your agency, the radio station management or the public. I believe these radio hosts should face disciplinary action, have to apologize on air to the listeners and to “Noah”. I have small children who listen to this station and they should not be subjected to this type of abusive conversation including a 10-year-old child.
The broadcaster responded to the complainant on September 10. It noted that it was a member in good standing with the CBSC and cited Clause 9 (Radio Broadcasting) of the CAB Code of Ethics, which contains a provision regarding sexually explicit material. The broadcaster then offered the following explanation of the broadcast:
As you are no doubt aware, CKIS-FM is a contemporary hit radio station with a target demographic of 18-49. The Roz and Mocha morning show is, by design, intended to be edgy and caters to a specific audience that enjoys listening to provocative discussions. As you can appreciate, live radio is immediate and unpredictable, but it also presents certain challenges when it comes to inappropriate remarks or poor choice of words.
Having said that, our management team agrees the hosts’ comments regarding the erection were in poor taste. However, these comments were not directed to the boy but were part of a discussion between the hosts. Please note that management has spoken with them about this incident and were assured that it would not happen again.
However, given the format of the station, target audience and the fact that the conversation was not unduly sexually explicit, we do not believe that CKIS-FM violated the CAB Code of Ethics.
Notwithstanding, it is clear from your letter that you were offended and for that we sincerely apologize. We value the opinion of all of our listeners.
The complainant submitted his Ruling Request on September 13 with a short note:
In my opinion, the CAB Code of Ethics was indeed violated and the conduct demonstrated was careless, unprofessional, inappropriate and outside the boundaries of “excellence in broadcasting”. I am not satisfied with the station’s response.
The Ontario Regional Panel examined the complaint under the following provisions of the CAB Code of Ethics and Equitable Portrayal Code:
CAB Code of Ethics, Clause 2 – Human Rights
Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability.
CAB Code of Ethics, Clause 6 – Full, Fair and Proper Presentation
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
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:
b) Unduly sexually explicit material.
CAB Equitable Portrayal Code, Clause 2 – Human Rights
Recognizing that every person has the right to the full enjoyment of certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, gender, sexual orientation, marital status or physical or mental disability.
CAB Equitable Portrayal Code, Clause 8 – Exploitation
a) Broadcasters shall refrain from the airing of programming that exploits women, men or children.
b) Broadcasters shall refrain from the sexualization of children in programming.
The Panel Adjudicators read all of the correspondence and listened to the broadcast in question. The Panel concludes that CKIS-FM did not violate Clauses 2, 6 or 9(b) of the CAB Code of Ethics, nor did it violate Clause 2 of the CAB Equitable Portrayal Code. The station did, however, violate Clause 8(a) and (b) of the CAB Equitable Portrayal Code.
Human Rights: Some Poor Assumptions
The CBSC has long applied the principle established in CFOX-FM re The Larry and Willy Show (CBSC Decision 92/93-0141, August 30, 1993) that it is not simply any reference to race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status or physical or mental disability that will breach the Code but rather those that contain abusive or unduly discriminatory material or comment.
While the Panel agrees that there were no unduly discriminatory or abusive statements made about Noah’s ethnicity or religious background, the hosts devoted a part of their dialogue to what the Panel considers a disappointing commentary. In the view of the Panel, the ten-year old manifested more sensitivity in his answer than they did in their question. When the hosts put the inappropriate question “Are you a white kid or a brown kid?”, Noah avoided the trap by replying, “Uh, I’m, well, I’m Canadian.” Unable to resist an additional inappropriate observation, they concluded, “Okay, so you’re white.” The Panel finds the hosts’ end of the commentary non-inclusive and insensitive. Canada and its largest city are ethnoculturally diverse. For the hosts to in effect draw the conclusion that the equation “Canadian equals white” is the rule, if ever it was, is no longer appropriate broadcast fare. Moreover, such an observation coming from a powerful microphone risks desensitizing the public. Nor is the principle of inappropriate exclusionary cultural messaging new to the CBSC. As long ago as 1995, the Quebec Regional Panel was called upon to deal with an expression of an equivalent sense in the following sentence, “A ‘Québécois pure laine’ has just won Canada's first gold medal at the Lillehammer Olympic Games.” In CKAC-AM re Newscast (CBSC Decision 93/94-0191, December 6, 1995), that Panel explained why the phrase was inappropriate, even though not a breach of the Human Rights Clause.
The members of the Regional Council discussed the expression “Québécois pure laine” at considerable length. They understand that the expression is well-known and, indeed, a part of every-day colloquial language in Quebec. They fully expect that the news reader had no intention to cause harm or to insult members of any racial, ethnic, national or religious group by using the expression “Québécois pure laine”. The opposite intention, they believe, could have been evident as the result of context, tone or other factors. The Council members listened carefully to the language again and again to ensure that no such perspective was intended. That being said, the members understand that, however positive the reason for the use of the expression may have been in this instance, there is an exclusionary sense to the use of the term at all.
[...] It is the view of the Quebec Regional Council that the use of the expression “Québécois pure laine” or similar expressions meant to convey the same idea, such as “Québécois de vraie souche” can, in a pluralistic society such as Quebec’s, create an unwelcome or negative, if not discriminatory, sense among those who do not fall within the ambit of the term. The Council believes that radio and television stations ought to be particularly vigilant in avoiding the use of such expressions on the airwaves which are, after all, publicly owned.
The Ontario Regional Panel, like that in Quebec in 1995, finds that the challenged terminology, while not in breach of Clause 2, has no useful place on Canadian airwaves in 2010.
A Proper Comment?
Although, in the complainant’s view, the hosts made fun of the boy’s name, the Panel found the joking about it quite light, light years removed from the kinds of nasty personal insults that have been sanctioned under Clause 6 of the CAB Code of Ethics. [See, for example, CJMF-FM re the program L’heure de vérité avec André Arthur (CBSC Decision 99/00-0240, August 29, 2000), in which the host of the challenged program treated a prominent Quebec family’s organization of a holiday fundraiser with sarcasm, adding that this family had a number of problems such as “psychological problems, addiction problems and alcoholism problems” and he went on to describe them as a “family of crooks”. See also CHOI-FM re Le monde parallèle de Jeff Fillion (CBSC Decision 02/03-0115, July 17, 2003), in which one radio host referred to another as [translations] “conceited asshole”, “that worthless piece of trash”, “shit disturber”, and “a tree with rotten roots.” See finally, for these purposes CKAC-AM re an episode of Doc Mailloux (Adolescent Sexuality) (CBSC Decision 05/06-1104, June 30, 2006), in which the host referred to a prominent American actor as [translation] “full of shit”.]
The Panel considers that the principle applied by this Panel in CHFI-FM re The Don Daynard Show (CBSC Decision 94/95-0145, March 26, 1996) is perfectly applicable by analogy (the CHFI-FM decision was rendered under Clause 2, rather than Clause 6, of the CAB Code of Ethics). In that broadcast, the hosts told a series of “light bulb” jokes, including one which asked, “How many Jewish mothers does it take to change a light bulb?” A listener did not take this “joke” lightly, feeling that it was anti-Semitic and offensive. This Panel concluded that there had been no violation of the Code, and stated that
the Jewish mothers light bulb joke, while ethnically pointed, was neither demeaning nor abusive. It was told in the context of a series of light bulb jokes aimed at feminists, Marxists, surrealists, accountants, etc. It poked fun but did not bludgeon. It tickled but was not nasty. [Emphasis added.]
The Panel commented that it is not reasonable to expect “that the airwaves will be pure, antiseptic and flawless when society is not.” Furthermore, the “Panel’s duty is to put a potentially offensive ethnic joke on its societal scale and determine whether it could reasonably be viewed as having gone too far.”
In the matter at hand, the Panel does not find the humour the least bit pointed, heavy-handed or nasty vis-à-vis Noah. At worst, they asked him whether others make “building an ark” jokes with him. And when, in anticipation of the hypothetical fate-ordained 2012, the hosts asked whether they would be able to board the ark he and the other Noahs would build, he cleverly retorted, “[Yeah,] you guys get to be on the ark.” Far from being critical at the caller’s expense, they observed, “You’re very articulate and well-spoken for a ten-year old.”
Unduly Sexually Explicit?
Clause 9(b) of the CAB Code of Ethics prohibits the broadcast of unduly sexually explicit material, and Panels have interpreted “unduly” relative to the time of day at which the comments are broadcast (the principle being that sexually explicit material should not be broadcast at times of the day when children could be listening). Leaving aside the meaning of “unduly”, “sexually explicit” itself requires detailed descriptions of actual sexual acts. Mere mild references to sex and sexuality, innuendo and double entendres are acceptable at any time of day, as are comments about body parts. Thus, in CIRK-FM re K-Rock Morning Show (CBSC Decision 01/02-0713 & -1113, February 5, 2003), the Prairie Panel was called upon to deal with a number of more or less sexual discussions. One of the spots dealt with a question about penis shape. The Panel found
that this particular Dirty Lori segment was not sufficiently ribald to be considered in breach of the Code. While the conversation did provide a description of male anatomy, it was not in the context of a sexual act which is the criterion that would have rendered it inappropriate for times of the day when children could be listening.
In the matter at hand, the Panel concludes along the same lines. There was no discussion of a specific sexual act and, although there was a sexually-oriented issue that is discussed in the following section, the mere description of a private body part does not give rise to a breach under Clause 9(b) of the Code of Ethics.
Exploitation and Sexualization of Children
Although, as noted in the previous section, mild sexual references, innuendo, double entendres and the mention of private body parts are acceptable at any time of day, those comments become unacceptable when they refer to children. Thus, both sexually explicit comments and sexual innuendo involving children will be found in breach of Clause 8 of the CAB Equitable Portrayal Code. In CILQ-FM re The Howard Stern Show(CBSC Decision 97/98-0487+, February 20, 1998), for example, this Panel had to consider comments made by the host regarding children’s participation in sexual activities. Stern “joked” that he “tried to get it on” with his friend’s children at a party. In response to a statistic about the rate of syphilis among babies in New York, he replied “who are they getting it on with?” and “nothing better than a good baby”. He also told a joke: “What’s the worst thing about having sex with your sister? [...] Breaking the crib.” This Panel expressed its concern about the host’s comments in the following terms:
The Regional Panel has not previously been called upon to assess the content of talk radio programming of a more serious nature than that involving the participation, real or imagined, of children in sexual acts. However permissive the view of society may be toward consensual sex among adults, there is no tolerance in civilized societies for child pornography in any form. As the Supreme Court put this point in defining the three categories of pornography in Butler v. R., it explained that “explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. [Emphasis added.]” In this area, the station has itself acknowledged “that extra vigilance is required where children and sexuality are linked, even if in jest.”
The British Columbia Regional Panel came to an identical conclusion in CFMI-FM re Satirical Sketch (CBSC Decision 01/02-1062, January 14, 2003), in which it dealt with a complaint about a satirical audio sketch. Unrelated comments made by U.S. President George W. Bush were edited together to create a fictional speech for intended humorous effect. One portion of the mock speech stated "To all the men and women in our military so far from home, I gave a fourth grade girl. And now every sailor, every soldier, every marine will come." The Panel concluded that the sketch inappropriately sexualized children.
[T]he Bush satire is a comedic attempt to deal with a subject that is unrelated to children and does not inherently require any reference to children to be complete. The references to children in both cases were someone's concept that sexualizing children is or can be humorous. The BC Regional Panel does not take that position. It considers that neither explicit nor suggestive references to the sexualization of children (under 12) in the flippant, offhand way evident in this satirical broadcast are acceptable. There is neither reason nor excuse for the inclusion of that reference in the Bush satire. It should have been excised; alternatively the item ought not to have been broadcast.
In CFRQ-FM (Q104) re a conversation about a concert (CBSC Decision 06/07-0310, August 8, 2007), the Atlantic Regional Panel dealt with a complaint from the Women’s Innovative Justice Initiative (WIJI) that bears some similarities to the matter at hand, in terms of the description of children’s body parts. Following a concert in Halifax by the Rolling Stones, two male announcers discussed the event on air. One suggested that the other was “excited like a little school-girl”, to which the other replied, “with my budding breasts and my rock-hard nipples.” A representative from the WIJI complained that this comment sexualized children and “objectified girls’ bodies.” The Panel agreed.
In the matter at hand, the parsing of the sentence reveals the problem. One of the commentators, Scott, used the simile “excited like a little school-girl”. The other, J.C. [...], replied, “Like a little school-girl”, encouraging Scott to take an additional step, retorting, “Like a tiny little school-girl.” In the Panel’s view, had they gone no farther, there would have been no issue. “Like a little school-girl” would have been understood in the same way as “like a little school-boy” would have been, namely, with the emphasis on “little”, as in naïvely excitable, girlishly, boyishly or youngishly thrilled. Indeed, there are many kinds of excitement, most of which have no sexual connotation. A child may be excited by birthday or holiday presents, getting a new puppy, being at an amusement park, meeting a famous singer or sports personality, and so on.
The dialogue between Scott and J.C. did not, however, end at such an innocuous place. [J.C.] added “[my] budding breasts” and “my rock-hard nipples”. In the view of the Panel, the reference was clearly sexual and, when the reference to “budding” breasts was added to “little school-girl”, the intent to refer to children was unmistakable. In the circumstances, the Panel’s conclusion cannot be otherwise than that the broadcaster unacceptably sexualized children.
More recently, in CFNY-FM re comments made on the Dean Blundell Show (Justin Bieber fans) (CBSC Decision 09/10-0333, June 22, 2010), this Panel dealt once again with comments made about children in a sexual context. Morning show host Dean Blundell had apparently posted comments on his Twitter page about 16-year-old pop singer Justin Bieber, expressing his dislike for the singer and suggesting in vulgar terms that Bieber was likely gay. Bieber’s fans posted replies which criticized Blundell and Blundell responded with his Tweets making fun of those fans. Blundell and his co-hosts commented on the Twitter exchanges during an episode of the morning show. They acknowledged that most of the fans with whom Blundell had been communicating were likely around the age of 12. Blundell reported that he had tweeted to one girl that she should “Save your energy for puberty or to fend off your dad tonight while you’re sleepin’” and about the one male fan who had contacted him, Blundell said, “He’ll be chuggin’ before he’s 18 [...] if he likes that music.” As in the matter at hand, this Panel agreed with the broadcaster that the remarks did not contain explicit descriptions of sexual acts, but it found that the comments inappropriately sexualized children contrary to Clause 8(b) of the CAB Equitable Portrayal Code:
The CBSC has found no justification for allegedly humorous references to children in sexual contexts, including those of the nature of sexual innuendo, double-entendres and inexplicit sexual comments that would not be problematic if the references were to adults (as discussed in the previous section).
[T]he Panel concludes that the pre-pubescent reference, “Save your energy for puberty or to fend off your dad tonight while you’re sleepin’” was gratuitous, unnecessary and a clear violation of Clause 8 of the Equitable Portrayal Code. The Panel also considers that the predictions that Josh, the youthful tweeter (they estimated his age as 12ish), will be “chugging” by the time he turns 18, are similar. The Panel considers that these comments were just as gratuitous and unnecessary and were, consequently, equally a violation of Clause 8 of the Equitable Portrayal Code.
Applying the foregoing Panel findings to the matter at hand, the Ontario Regional Panel concludes that the hosts went beyond the mere reference to a private body part. As in the CFRQ-FM decision, the discussion was to a state of arousal. In the Atlantic Panel decision, however, the dialogue was between the two hosts and the Panel still concluded that there had been a breach. In the matter at hand, the discussion was not merely between two adult hosts, it was with a 10-year old. The broadcast of this sexualization of the young caller, Noah, is also exploitative and in clear breach of Clauses 8(a) and 8(b) of the CAB Equitable Portrayal Code.
In all CBSC decisions, the Council’s Panels assess the broadcaster’s responsiveness to the complainant. In the present instance, the Panel finds that the response of the broadcaster’s parent company’s Vice President, Regulatory Affairs, focussed on the issues that concerned the complainant and candidly admitted the inappropriateness of elements of the broadcast, and indicated the steps taken by management to decrease the likelihood that the situation would recur. The Panel is satisfied that CKIS-FM has met its membership obligation in this instance.
Announcement of the Decision
CKIS-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 within seven days following the release of this decision during the time period in which this segment of the Roz and Mocha Show was broadcast, but not on the same day as the first mandated announcement; 2) within the fourteen days following the broadcasts 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 a copy of that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CKIS-FM.
The Canadian Broadcast Standards Council has found that CKIS-FM (KiSS 92.5) breached the Canadian Association of Broadcasters’ Equitable Portrayal Code in a segment of the Roz and Mocha Show broadcast on August 13, 2010. The hosts discussed sexual matters while on the phone with a 10-year-old listener. This broadcast violated Clause 8 of the Code, which prohibits the exploitation and sexualization of children.
This decision is a public document upon its release by the Canadian Broadcast Standards Council.