Articles on cancellation of CHOI-FM licence
Quebec broadcaster wants Tories to reverse CRTC decision
CHOI-FM faces closing as owners ask new minister to keep pre-election pledge
February 11, 2006
Globe and Mail
By Rheal Seguin
QUEBEC -- Quebec City's No. 1 radio station, CHOI-FM, is urging the new Conservative government in Ottawa to stop the station from closing.
Patrice Demers, president of Genex Communications Inc., said he will soon meet with Heritage Canada Minister Bev Oda and the minister responsible for the Quebec City region, Josée Verner, to ask them to keep their commitment to reverse the federal broadcast regulator's decision to revoke CHOI-FM's licence.
"They both said during the election campaign that they thought the decision to close the station was too severe. It's now a political issue and they have to decide what they can do now," Mr. Demers said in an interview.
The Canadian Radio-television and Telecommunications Commission revoked the controversial station's licence in July of 2004, saying CHOI-FM had failed to comply with repeated demands to end abusive comments by former morning radio host Jean-François (Jeff) Fillion and part-time co-host André Arthur.
It was the first time a radio station's licence has been revoked strictly for offensive, vulgar and abusive language. The station has since fired Mr. Fillion, and Mr. Arthur was elected as the country's only Independent MP on Jan. 23.
Last September, the Federal Court of Appeal upheld the CRTC's decision and reinforced the commission's authority to regulate what is said on Canada's airwaves. In a unanimous decision, the court rejected the station's argument that the CRTC's decision was censorship and an infringement on freedom of speech.
"I do not think that freedom of expression, freedom of opinion and freedom of speech mean freedom of defamation, freedom of oppression and freedom of opprobrium," Mr. Justice Gilles Létourneau said.
Last month, the Supreme Court of Canada heard the station's application to appeal the decision. Mr. Demers's lawyer, Guy Bertrand, argued that the decision to close the station was political.
"This is a right-wing, populist pro-American station. It is anti-Quebec, anti-sovereigntist, anti-union, anti-government and has repeatedly attacked the local political establishment. Its politics angers the political elite as well as a majority of the population," Mr. Bertrand said.
If the Supreme Court refuses to hear the case, CHOI-FM will have to close immediately unless the judges accept Mr. Bertrand's request to allow 60 days for the orderly shut-down of what is estimated as a $25-million business operation.
In Ottawa, sources say the government will not intervene as long as the case is before the courts. But Mr. Arthur, who campaigned on a promise to keep the Conservatives to their word to save the station, said political intervention should not depend on the court action.
Mr. Arthur said the Conservative government could immediately require the CRTC to review its decision. But he added that such a move would weaken the regulator's ability to patrol the airwaves.
"The CRTC doesn't want to lose face and certainly does not want to lose its censorship powers. If the government forces the CRTC to review its decision, this would mean the end of the CRTC as we know it," Mr. Arthur said in an interview yesterday.
Mr. Demers could also agree to close the station temporarily and apply for a new licence.
Ms. Oda was unavailable for comment.
A spokeswoman for her office, Dominique Collin, said the minister would examine the file before deciding what action to take.
Federal Court tunes out Quebec City radio station
Decision supports CRTC's right to revoke broadcast licence over offensive remarks
September 2, 2005
Globe and Mail
By Rheal Sequin
QUEBEC -- In a landmark ruling, the Federal Court of Appeal has upheld a decision to close a controversial Quebec City radio station for using offensive and abusive language, and reinforced the federal broadcast regulator's right to regulate and police what is said on Canada's airwaves.
The decision strikes a blow to trash radio and warns broadcasters against flouting standards to shock listeners and attract audiences through abusive broadcasting, Canadian Radio-television and Telecommunications Commission president Charles Dalfen said.
"The decision is very clear that we have the authority to monitor, police and regulate content. . . . The idea that we can't regulate content is nonsense," he said yesterday.
The Federal Court of Appeal ruled that the CRTC acted according to its mandate in revoking the broadcast licence of Quebec City's top radio station, CHOI-FM.
Federal regulators refused to renew the station's licence in July, 2004, saying its owner, Genex Communication, failed to comply with demands to end abusive comments by former host Jean-François Fillion. More than 50,000 listeners protested against the decision.
The appeal court rejected the station's argument that the decision amounted to censorship and that the CRTC had overstepped its authority by infringing on the station's right to freedom of speech.
"It must be clearly understood that this appeal, contrary to the apparent belief and desire of the appellant [Genex Communication] does not give rise directly or in general to a comprehensive debate over freedom of speech," Mr. Justice Gilles Létourneau of the Federal Court of Appeal, said in a unanimous decision that included the Federal Court's Chief Justice John Richards as well as Mr. Justice Marc Nadon. "It is false to contend that the CRTC has unlawfully set itself up as a censor of the content of the appellant's programs."
In upholding the CRTC decision, Judge Létourneau took direct aim at CHOI-FM's use of vulgar language and personal attacks.
"I do not think I am mistaken in saying that freedom of expression, freedom of opinion and freedom of speech do not mean freedom of defamation, freedom of oppression and freedom of opprobrium," he said. "Nor do I think I am mistaken in saying that the right to freedom of expression under the Charter does not require that the state or the CRTC become accomplices in or promoters of defamatory language or violations of the right to privacy, integrity, human dignity and reputation . . . "
Judge Létourneau listed complaints of CHOI-FM comments that were "defamatory, offensive, vulgar, blasphemous, malicious, false, discriminatory and demeaning of individuals." He referred to one instance in which Mr. Fillion said of a psychiatric patient: "Why don't they just pull the plug on him? He doesn't deserve to live. The guy's a freaking burden on society."
Mr. Fillion was fired during a highly publicized defamation suit against the station last spring.
Patrice Demers, president of Genex, said he would take the battle to the Supreme Court of Canada to protect his lucrative business and his station's right to free speech.
"It is the first-ever station closed for verbal content in Canada," Mr. Demers said.
Should the Supreme Court agree to hear the case, Mr. Demers expects to be able to continue broadcasting until a final decision is made. He said the battle has so far cost his company a half million dollars and he expects it will cost at least that much to continue.
The station has 20 days to obtain an extension of its judicial licence to stay on the air. If no agreement is reached with the federal Attorney-General, the Federal Court of Appeal will be asked to grant an extension until the Supreme Court of Canada rules on whether to hear the case.
CTRC rules the airwaves, but fight is on
August 30, 2004
Globe and Mail
By Hugh Winsor
Liberté or limits? It may seem the Federal Court came down last week on the side of liberté, versus the Canadian Radio-television and Telecommunications Commission's ability to set broadcast standards, when it extended the licence of Quebec City alternative rock station CHOI-FM for six months.
Certainly, the station's defiant proprietor, Patrice Demers, considers it a victory that he doesn't have to turn off his transmitters tomorrow as originally scheduled. Mr. Demers and his frequently profane hosts have been immensely successful in portraying the CRTC's decision not to renew the CHOI licence as an attack on free speech and the Charter of Rights and Freedoms.
Several thousand CHOI fans were so riled they journeyed to Parliament Hill demanding their liberté to listen to whatever and whomever they want, including the vulgarity that is often heard on CHOI. Even Quebec Premier Jean Charest and newly minted Canadian Heritage Minister Liza Frulla have taken up their case.
In fact, liberté is not the issue here, and the Federal Court merely provided CHOI time to pursue technical arguments about the CRTC's jurisdiction.
The real issue is whether the Broadcast Act's requirement for broadcasters to provide a "high standard of balanced programming" and to refrain from abusive comments "on the basis of an individual's or a group's race, national or ethnic origin, colour, religion, sex, sexual orientation, age or physical or mental disability" are still relevant, and hence to be enforced by the CRTC.
Or, as Conservative Leader Stephen Harper has suggested, should the CRTC's role be reduced to allocating frequencies? If minimal standards and anti-defamation codes are still meaningful, the CHOI hosts have contravened almost every one of them.
Consider the rant from host André Arthur aired last November about African students at Laval University in Quebec City: "The problem is, people forget that in Muslim countries and countries in black Africa, the ones who are sent abroad to study are . . . the sons of plunderers and cannibals who control certain countries and can afford to send their children to Quebec . . . children of the most disgusting political leaders in the world, people who are sucking their countries dry, people who kill to gain power and torture to keep it." On another occasion, a CHOI host attacked a television weather reader for the size of her breasts, her small waist and "tight ass." The host also referred to her as a "cat in heat," suggesting she used sex to get her job.
Mr. Arthur's co-host, Jeff Fillion, once argued mental patients were a drain on society and should be gassed, and these are only a few examples of the liberté CHOI wishes to perpetrate. In 2002, after many complaints and skirmishes, CHOI reluctantly agreed to adopt a code of ethics as a condition of a two-year licence renewal, but then promptly ignored it. CHOI has won a brief stay of execution, but if the station is able to keep its licence through legal manoeuvring, it will make a mockery of the standards set out in the Broadcast Act, including the obligation it imposes on the CRTC to enforce them.
Policing domestic broadcasters is actually not the biggest political threat to the supposedly arm's-length regulator. More worrisome for the CRTC is the pressure it faces in handling foreign services distributed through Canadian cable systems.
The Italian-Canadian community is furious the CRTC blocked the Italian television channel RAI International. And that community has big political clout through its ministers in the Paul Martin cabinet, including the Heritage Minister. That could be the reason the CRTC vice-chair for broadcasting, Andrée Wylie, was given only a one-year extension on Friday, rather than three or five years.
The Canadian Jewish community also has big political clout, and under pressure from it, the CRTC has imposed an unworkable censorship regimen on the Arab-language television network, Al-Jazeera (even though the network operates freely in Israel).
All in all, broadcasting regulation may become the sleeper issue of the minority Parliament.
Can't quash CRTC ruling, Frulla says
July 31, 2004
Globe and Mail
By Kim Lunman
OTTAWA -- It's not up to the federal government to decide if Quebec City's most popular radio station should be allowed to stay on the air, Heritage Minister Liza Frulla said yesterday.
Last week, 50,000 protesters marched in the streets in Quebec to protest against a decision by the Canadian Radio-television and Telecommunications Commission not to renew CHOI-FM's licence, citing crude comments by the hosts of its morning show.
The government cannot interfere in such matters, Ms. Frulla said.
"According to Article 28 of the Broadcasting Act, the decision of the CRTC cannot be appealed to the government," she said in a written statement. "Therefore, [the station's parent company] Genex Communications Inc. has two options: to appeal the CRTC decision to the Federal Court or to apply for a new broadcasting license should the company decide to meet the criteria established by the CRTC."
The radio station has been lobbying Ms. Frulla to reverse the decision in a case that has sparked debate over freedom of speech and become a political hot potato for Prime Minister Paul Martin. Quebec Premier Jean Charest, NDP Leader Jack Layton and Conservative Leader Stephen Harper have voiced concern over the decision.
The federal government's response is sure to raise more ire in Quebec, where the Liberals were trounced in the June 28 election.
"It's incredible the government doesn't take a position," station owner Patrice Demers said. "It's silly. By the decision, it seems the CRTC is governing the country, not the government."
The station is planning to broadcast from Parliament Hill next month in protest, said Mr. Demers, who calls the ruling censorship.
If the decision not to renew the licence is upheld, he stands to lose a $25-million business that attracted up to 380,000 listeners.
The controversy stems over two shock jocks who were the target of 92 complaints for repeatedly making crude and insulting comments about local personalities, foreign students or disabled people.
Jean-Francois (Jeff) Fillion, host of the 6 to 10 a.m. slot, and Andre Arthur, of the smaller sister station CKNU, were the co-hosts of a now defunct 30-minute segment.
Among some of the more shocking comments were suggestions that psychiatric patients should be gassed and that African students at Laval University were children of cannibals and plunderers.
It is the first time that CRTC has not renewed a commercial licence solely because of verbal content.
CRTC chairman Charles Dalfen has defended the regulator's actions, arguing that freedom of expression is not absolute when there is a pattern of "abusive comments" being aired.
CHOI lost its licence, which expires Aug. 1, because it did not clean up its act after several warnings. Its lawyers are preparing a request for an injunction to suspend the decision while it is being appealed in early August in Federal Court.
"I believe we'll win in court," Mr. Demers said. "I hope so."
Vilified CRTC caught in the Act
Jul. 18, 2004
By Antonia Zerbisias
After their rulings last week, our federal broadcast watchdogs should ask for danger pay.
The government-appointed members of the Canadian Radio-television and Telecommunications Commission (CRTC) must now be the most hated people in the country, thanks to their decisions to pull the plug on Quebec city radio station CHOI, bar the introduction of RAI International to the digital dial while allowing in the Arabic news network Al-Jazeera.
There's much to be said about all of these decisions and, believe me, in this post-election lull, it's as if there's nothing else for people to pundificate about. There hasn't been such an uproar since 1995 when cable shoved a bunch of channels down our throats under that old "negative option" scam. But, instead of freedom of consumption, this time the issue is, ostensibly, freedom of expression.
CHOI, which repeatedly gave the CRTC, the law, the radio industry's self-governing standards body, its own "code of ethics," and many public figures the figurative finger, will go off the air Aug. 31.
(But then, it may not. It could keep operating, without a licence, while it appeals.)
The CRTC decision catalogues a long list of CHOI sins, detailing how two of its personalities, Jean-François Fillion and André Arthur, offended a few of their tens of thousands of listeners with comments about mental patients such as "[translation] What I think they should do in the zoo is fill up the rooms, and then there'd be a switch, and once every four months, they press the button and just a little bit of gas comes out, and then you go in and pick it all up and put it in bags." They urged listeners to steal satellite signals and referred to North Africans as "cannibals."
Now it's likely that one or two of these offences would have resulted in a slap on the wrist and an on-air apology. But station owner Genex repeatedly defied the rules, so much so that, at its last licence hearing, it was given only a two-year opportunity — instead of the usual seven-year renewal — to clean up its act.
It didn't, and the CRTC had to live up to its mandate under the Canadian Broadcasting Act "to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada" etc. etc. etc.
Did the regulator go too far? Probably. A hefty fine might have worked. A suspension, perhaps. A referral to the criminal courts under the hate laws, maybe. But it's not clear the CRTC had any of these legal recourses and so, it exercised the one power it knew it had.
And all last week, there was a hue and cry about freedom of expression, as well as lot of noise about government interference in the free market.
But the airwaves are not the "free market." They're public property. Just as we don't give private airlines the right to fly over our homes and empty the contents of their washrooms, and just as we don't allow manufacturing plants to dump their waste into our lakes (without some oversight, anyway), we can't allow our airwaves to be staked out by the guys with the biggest bucks and the strongest signals.
As for the digital dial, which isn't really public, ask yourself this: When was the last time you had a choice between cable providers? They've been protected monopolies for decades.
If Canadians have a problem with any of this, then they should petition their MPs. The current Act may well need revision. It was passed, more than a decade ago ... by the Brian Mulroney Conservatives.
Of course, none of the pundits blaming the Liberals for deep-sixing CHOI — which is a federalist voice in Quebec — seems to remember that.
The CRTC barred RAI International because it had to protect the 20-year-old analog cable channel Telelatino which is sustained by a good deal of RAI programming.
Again, the Act forced the CRTC's hand. That's because it stresses Canadian ownership and, just as significantly, protects players already in the system. (Yeah, so good luck trying to start up your own station because it's an old boys' network in more ways than one.)
Note that Telelatino is controlled by Corus which is controlled by Shaw Cable, all of whom benefit from regulatory protection. (Can you say simulcasting, kids?) Which should make you wonder: Don't you just love how broadcasters, who own this closed shop, are so silent about CRTC decisions when they go their way but go wha-wha-wha all over their media properties when they don't?
Those who accuse Al-Jazeera of disseminating hate point out the apparent inconsistency of killing CHOI while licensing the Arab news channel.
Well, not quite. CHOI had nine years to show it was responsible. It failed to do so — and corporations can't claim the right to freedom of expression.
Meanwhile so many conditions have been placed on Al-Jazeera's distribution that cable companies are balking. Which is just like not licensing it at all.
The CRTC could not win this.
If it had allowed in Al-Jazeera without restriction, there would have been an uproar from those who are afraid of it. If it barred it, the CRTC would have been accused of censorship — for no legitimate reason under the Act.
Is it time to re-write the law? That's up to citizens. But those firing salvos at the CRTC should read the Act before they shoot off their mouths.
Radio crackdown opens deep divide
July 15, 2004
Globe and Mail
By RICHARD BLACKWELL, TU THANH HA, SIMON TUCK
With a report from Patrick Brethour
The federal broadcast regulator's decision to cancel the licence of Quebec City radio station CHOI-FM unleashed a heated debate yesterday, as politicians, journalists and broadcasters weighed in on the ruling's impact on free expression.
Critics including Conservative Leader Stephen Harper slammed the decision, which would take the French-language station off the air, as heavy-handed. Others applauded it as a hopeful sign the regulator is ready to get tough on abusive talk on the airwaves.
CHOI lost its licence because of a pattern of offensive comments by its morning-show hosts and because it did not clean up its act after several warnings.
Charles Dalfen, chairman of the Canadian Radio-television and Telecommunications Commission, defended the CRTC's actions by saying that the right to freedom of expression is not absolute.
"It's a matter of balancing it against equal and opposite rights," he said in an interview. "This is not about controversial comments. It is about abusive comments."
Although debate about what constitutes censorship may be legitimate, he said, in this case there is no question that the station breached the rules. "Wherever the line is, this licensee is way over it."
The reaction to the ruling was most intense in Quebec City, where CHOI began a campaign to rally public support.
Employees fanned out into shopping-mall parking lots, handing out bumper stickers emblazoned with CHOI's logo and the word "Freedom."
The station plans to seek an injunction to suspend the decision, to take effect when its licence expires on Aug. 31. At that point, CHOI plans to ask the Federal Court to overturn the CRTC ruling.
Parent company Genex Communications Inc. has retained National, one of Quebec's most prominent public-relations firms, to lobby on its behalf. And Genex CEO Patrice Demers said he would petition the federal cabinet.
In Ottawa, Mr. Harper issued a news release saying he is concerned about the CRTC decision.
The release points to the freedom-of-speech provisions in the Charter of Rights and Freedoms and says that Mr. Harper's concern echoes that of groups such as the Quebec Press Council, the Quebec Federation of Professional Journalists and the Action Démocratique du Québec.
Christiane Gagnon, heritage critic for the Bloc Québécois, said there is enough blame for both sides.
The CRTC's punishment is very severe, the Quebec City MP said, though the radio station left the commission little choice; closing the station will hurt a young business and cause job losses.
Karl Belanger, press secretary for NDP Leader Jack Layton, said many Quebec City residents wonder whether an unelected body such as the CRTC should have the power to close a radio station.There's heavy pressure on the CRTC to find a way to keep the station on the air, Ms. Gagnon said. "The people who are the addicts of CHOI-FM are very upset."
Many commentators in Quebec said the decision is too harsh, no matter how crude the behaviour of the station's hosts. There was, however, little sympathy for the radio hosts who often skewered those same opinion-makers.
"So that the majority can express itself, we have to give freedom of speech to the imbeciles," the daily La Presse said in an editorial, adding that "it's not up to the CRTC to tell Canadians what they have the right to watch or listen to."
Franco Nuovo, a columnist at Le Journal de Montréal who had been threatened on air by Mr. Fillion, wrote that he could not help feeling satisfaction at his foe's misfortune. However, he argued for Mr. Fillion's rights. "He is the guilty one that we have to let go to save the life of a thousand innocents."
Broadcast-industry players said the CRTC had no choice but to yank the CHOI licence because its owners ignored warnings repeatedly and flouted commission rulings.
"If the CRTC didn't act on this case, which was so blatant, it would have set a very poor precedent for the future," said John Hayes, president of the radio division of Corus Entertainment Inc.
CRTC chairman Charles Dalfen said that in seven years, the CRTC received 97 CHOI complaints.
Free-speech fight erupts after CRTC bans station
July 14, 2004
Globe and Mail
By Tu Thanh Ha
Montreal - In a Canadian first yesterday, federal regulators yanked the broadcasting licence of CHOI-FM, Quebec City's most popular radio station, because of a long-running pattern of offensive comments by its morning hosts.
Setting the stage for a fierce debate over freedom of speech and the power to regulate airwaves, station owner Patrice Demers vowed to go to court to save his $25-million, 35-employee business.
:"You just witnessed an act of censorship that is totally unjustified and incomprehensible," he said.
"I will probably lose $25-million because I stood by my hosts and gave them freedom of speech."
It is only the sixth time since its creation that the CRTC has not renewed a licence. But until now no station had been banned solely for airing crude comments.
"This is the first time that the non-renewal is based on a pattern of verbal content as exclusively as this one is," Charles Dalfen, chairman of the Canadian Radio-television and Telecommunications Commission, said in an interview.
While the U.S. Federal Communications Commission has been cracking down on American stations, Canadian broadcasters tend to police themselves.
After a previous string of complaints, CHOI agreed to join the industry's watchdog. However, the CRTC said the hosts' behaviour only got worse.
"This was a unanimous decision of the panel. We felt there were no other options," Mr. Dalfen said.
In the world of CHOI, one could muse about gassing psychiatric patients, remark on a famous woman's breasts and encourage people to steal satellite TV signals.
The controversy centres on Jean-François (Jeff) Fillion, who hosts the 6 to 10 a.m. slot, and André Arthur, of the smaller sister station CKNU, who co-hosted a now-defunct 30-minute segment with Mr. Fillion.
Mr. Arthur, he of the many clashes with the CRTC and libel lawyers, has filled airwaves for three decades with his sharp-tongued comments. Mr. Fillion, who cites Howard Stern as a model, has been a star only since 1998.
The pair have ardent supporters who feel that they rightly scare the city's elite. But while few of their targets would claim sympathy for the two hosts, there were concerns over the CRTC decision.
"Does that justify closing a station? I'm not sure," said one Quebec City personality who had been attacked by Mr. Fillion. "I feel no grief for him but just because one guy acts like an idiot, it's too bad the station is paying for it."
Marc-André Blanchard, an expert in media law, said the CRTC has set a bad precedent. "There shouldn't be that type of government authority over whether or not an enterprise should live, based on content," the lawyer said.
In a separate notice, the CRTC opened applications for a new Quebec City station, saying that it already received bids. Mr. Demers called the move "odious".
Licences normally last seven years but CHOI got only a two-year renewal in 2002 because there had been 47 complaints.
The station promised to regulate itself, to stick to a code of ethics and to become a member of the Canadian Broadcast Standards Council, the industry's watchdog.
But the bad behaviour continued and 45 new complaints arrived, the CRTC ruling said. "In view of the licensee's inflexible behaviour, its lack of acceptance of its responsibilities and the lack of any demonstrated commitment to rectify the situation, the Commission cannot reasonably conclude that [the station] will comply . . . if its licence is renewed."
CHOI's licence expires Aug. 31. The money-losing station sat last in ratings when Mr. Demers bought it in 1996. Since then, it ranked first, with up to 300,000 listeners.
Mr. Fillion's show has 80,000 listeners and he was the top morning man, in part because his rival, FM 93's Robert Gillet, was charged in a teenage prostitution scandal, handing much fodder to the CHOI hosts.
Even after CHOI joined the CBSC, Mr. Fillion was on air saying about a psychiatric patient: "Why don't they just pull the plug on him? He doesn't deserve to live. The guy's a freaking burden on society."
About a female TV host, he talked of "her incredible set of boobs" and added that "the size of the brain is not directly proportional to the size of the bra."
Mr. Arthur, commenting on foreign students at a local school, opined that "in Muslim countries and countries in Black Africa, the ones who are sent abroad to study are the sons of people who are disgusting . . . the sons of plunderers, cannibals."
The CRTC's decision, while a surprise, comes against a backdrop of heightened concern among politicians, regulators, lobby groups and some broadcasters about "indecent programming" on radio, television and the Internet.
Less than six weeks after Janet Jackson had her famous "wardrobe malfunction" at the Super Bowl, Texas-headquartered Clear Channel Communications yanked veteran shock-jock Howard Stern's syndicated show from six of its radio stations, denouncing the program as 'vulgar, offensive and insulting."
Earlier, the FCC fined the stations a total of almost $500,000 (U.S.) for "knowingly and willfully broadcasting obscene material." Another Clear Channel employee, Todd Clem of Florida, better known as Bubba the Love Sponge, also lost his eight-year-old radio program around the same time because he participated on-air in a "sexually explicit conversation".
Last month the U.S. House of Representatives and Senate passed the Broadcast Decency Enforcement Act, which increased tenfold the penalties the FCC is allowed to levy against stations airing indecent material. Previously, stations had to pay $27,500 each time they aired indecent programming. Now broadcasters are facing a maximum fine of $275,000 per offending episode, to a maximum of $3-million per day.
With reports from Louise Gagnon and James Adams