Balance and Freedom of Speech: Challenge for Canadian Broadcasting

Peter G. Cook (University College of Southern Queensland)

Myles A. Ruggles (Simon Fraser University)

Abstract: The development of Canadian broadcast policy and law respecting "content balance" (and corollary notions of public "access and reply" entitlements, "abusive speech," and "controversial issues of public importance") exhibits significant definitional vagueness and discontinuity. The authors summarize the history of policy making in the area, and provide two case studies: one of religious television broadcasting, one of community radio broadcasting. These materials lead them to reject the notion of content balance as an element of regulatory terminology.

Résumé: L'évolution des politiques canadiennes en matière de radiodiffusion et celle des règlements concernant les "représentations équilibrées" (de même que des notions corollaires comme les droits d'accès et de réplique du public, le langage abusif et les sujets controversés d'intérêt public) témoigne d'un manque flagrant de précision et de continuité. Les auteurs résument l'histoire des politiques sur ces sujets et abordent également deux études de cas: l'un portant sur les émissions religieuses, l'autre sur les radios communautaires. Ces cas les amènent à conclure que la notion de représentation équilibrée ne constitue pas une composante de la terminologie de réglementation.

Virtually since its inception, broadcasting has constituted an arena of struggle for access by various groups and points of view. During the early decades of Canadian broadcasting, regulatory principles were developed to control opportunities for access to the airwaves. One such principle was the concept of balance, which was intended to prevent abusive and one-sided comment on religious and political matters. Commencing with the Aird Royal Commission, Canadian broadcasting regulation had its roots in attempts to moderate controversy expressed over the airwaves. Balance is a principle that has had a lasting impact upon the configuration of Canadian broadcasting, to the point that it was enacted in Section 3 (d) of the 1968 Broadcasting Act:

The programming provided by the Canadian broadcasting system should be varied and comprehensive and should provide reasonable, balanced opportunity for the expression of differing views on matters of public concern.

The principle of balance is intended to promote equity and democracy in and through broadcasting. It is intended to assure citizens that they are being informed of the main facts and points of view on key issues. How well has this intention been realized in practice? This paper takes up this question, and suggests the principle of balance has ambiguities and difficulties of enforcement which make it less than successful in carrying out the democratic role of the broadcasting system. Two case studies, on religious broadcasting and community radio, will be described which illustrate the ambiguous functions of the principle of balance. Before proceeding to these an outline of the conceptual underpinnings and enforcement pattern of the balance requirement will be provided.

Balance policy: principles and enforcement

The principle of balance operates at two levels: the licensing of stations and program content. The licensing level was instituted when the CBC (and before it the CRBC) was given responsibility for licensing and regulation. With the setting up of the CBC, it was intended that licences would not be granted to "special interest" groups such as religious organizations or political parties. This level of the balance principle was rarely ever formally expressed or even discussed, but it has remained at the heart of licensing policy ever since, being explicitly invoked during the early 1980s when there was a new push for licences to be granted to some religious groups.

At the level of content there has, however, been more discussion and formulation of guidelines with reference to balance in program content. A set of guidelines and principles was first issued by the CBC in 1939, in response to a series of controversial programs on the CBC, as well as requests by private individuals to buy air-time. The CBC principles were revised and reissued by the Board of Broadcast Governors (1961):

  1. The air belongs to the people, who are entitled to hear the principal points of view on all questions of importance.
  2. The air must not fall under the control of any individual or groups by reason of their wealth or special position.
  3. The right to answer is inherent in the doctrine of free speech.
  4. The full interchange of opinion is one of the principal safeguards of free institutions.

Until the 1968 Act, these principles had never been accompanied by a commitment to public investigation into specific complaints about imbalanced programming. This changed with the establishment of the Canadian Radio-television and Telecommunications Commission (CRTC, or "Commission," hereinafter). The CRTC had not long been established when it called a special public hearing into the "Air of Death," a CBC documentary on air pollution in Dunnville, Ontario (CRTC, 1970). In many ways this inquiry was a benchmark for the Commission's future supervision of the balance of views requirement. The report acknowledged the many complexities of assessing balance and generally tried to educate licensees as to the importance of editorial and licensee responsibility, rather than impose sanctions. During the 1970s the CRTC conducted several licence hearings and investigations in which balance of views featured as an issue. Most notable were two instances of conflict between French- and English-speaking cultures in Canada: the case of Radio CFCF in Montreal, an English-language station which was actively supporting a campaign against Bill 22 (CRTC, 1976), and the inquiry into the national broadcasting service (CBC and Radio-Canada), requested by the Trudeau government (CRTC, 1977). The upshot of these and other cases was that by the end of the 1970s, the CRTC had established a series of general principles underlying the balance issue, and also a pattern of enforcement of these principles (Cook, 1982).

The underlying principles can be summarized as follows:

  1. the airwaves are public property, or a public trust: the airwaves were declared to belong to the people (represented by the State) and were to be controlled for maximum public benefit;
  2. channel scarcity: radio and television frequencies are scarce in number and thus their use should be controlled for public benefit;
  3. diversity of views: broadcasting should represent the diversity of main viewpoints on issues of the day which were controversial or of public concern;
  4. station versus system balance: the statutory requirement that the broadcasting system be balanced has been interpreted to mean that each station must be balanced;
  5. availability of alternative information sources: the requirement of station balance is not affected by the availability of other information sources within a community or licence area. It is assumed that many citizens may not avail themselves of multiple information sources;
  6. individual exposure: following on from (v), the balance requirement is not affected by the desires of members of a station's audience to hear only one point of view (i.e. selective exposure). Balance is premised on the idea of a "right to hear" a range of points of view, and indeed there is an underlying implication that citizens ought to hear such;
  7. licensee responsibility: the licensee must establish adequate editorial policies and procedures to ensure the balance requirement is met;
  8. overall programming, not particular programs: licensees may achieve balance amongst differing views over a series of programs, not just one.

Added to these general parameters are the interpretations of specific wording in the Act, such as "reasonable opportunity" and "matter of public concern." In one sense controversy may simply be a critical reaction to something which is broadcast; generally it is anything subject to dispute within or amongcommunities. The Commission's comments on the CFCF case suggest that balance is necessary when an issue is controversial or disputed within the community at large, even if there is unanimity among the audience of a particular station. However, the Commission has not indicated in what circumstances a controversy may be such as to warrant extra care in seeking out and broadcasting differing points of view, instead it has taken the position that these are matters for the reasonable discretion of the licensee.

Similar questions of interpretation can be found in the provision of "opportunity" for the expression of differing views. Does the provision of opportunity require merely the offering of air time to those with differing views, irrespective of whether the offer is taken up, or does it mean the broadcast of differing views so that the audience has an opportunity to be exposed to them? In this, as in the question of what is of public concern, the Commission has not attempted to indicate in what circumstances one meaning is more applicable than another. There has, in addition, been little question of the Commission providing a procedure for considering the granting of substantial redress (compensation, reply time), or even a hearing, for complainants. Time for reply, and other editorial prerogatives, are in the Commission's view best negotiated directly and in private between the aggrieved party and the broadcaster, and not through a public hearing.

The interpretations and tests for these key terms remain vague and ambiguous because the Commission has wanted to avoid asituation in which it is seen to be over-riding or dictating such decisions. In fact, the Commission's powers are quite limited in this respect. The Commission may indirectly affect the programming available in the broadcasting system through its licensing powers, including condition of licence, and through general content regulation. It may also hear complaints about programming at licence renewal hearings, and it may call a special public hearing into a complaint. But as the National Indian Brotherhood case showed, the Commission is not considered to be empowered to direct a licensee with respect to a specific program. The only sanctions the Commission can bring against programming deficiencies are, in order of severity, shortening of the licence renewal term, the threat of adding more stringent conditions of licence, or the outright failure to renew. Such sanctions are generally too severe as a response to complaints about particular programs, although the CFRO case reported below is a notable exception to this.

As to how the Commission actually enforces or "supervises" the balance requirement, the Commission normally refers complaints to the licensee, in the hope that it will be settled through private negotiation. If it chooses, the Commission may investigate further, including the calling of a public hearing, which has only happened twice (1970, 1976). The National Indian Brotherhood case (1971) showed that the Commission, and only the Commission, may determine the extent of inquiry which is appropriate. In other words the Commission is not accountable to any other body in its decisions about whether, and how, it should investigate complaints. This means that groups or individuals making a complaint are in a relatively powerless position if they are dissatisfied with the Commission's treatment of their complaint.

The circumstances surrounding the calling the "Air of Death" (1970) and CFCF (1976) hearings, and the CBC inquiry (1977), suggest that the extent to which a complaint is investigated depends on the political power and authority of those who complain. In the "Air of Death" hearing, besides the CRTC's desire to demonstrate its new domain of investigation over that of the parliamentary committee on broadcasting, there was also the fact that federal and provincial ministers (including the Prime Minister), a large private corporation (Erco) and local farmers all took an interest in the issue and were in positions to bring pressure to bear on the Commission through various avenues. The build-up to the "Air of Death" inquiry had a long gestation during which highly powerful actors were involved in making various forms of protest. In the CFCF case, the tension between the English and French-speaking communities had been building for some months, and the inquiry was ostensibly called in response to a large volume of complaints made to the Commission. However, it has also been suggested that Quebec Liberals were putting pressure behind-the-scenes on federal government to silence CFCF (CRTC, 1981a, p. 115). The CBC inquiry was called at the "invitation" of the Prime Minister after the Quebec Liberals lost the 1976 election to the Parti Québécois. The CBC inquiry was almost a return to the times of the directlypolitically motivated inquiries into the CBC by the parliamentary committees.

Thus as far as the three major inquiries conducted by the CRTC are concerned, they were each instances of specific governments (and corporations) coming under attack through the media. It is hard to avoid the conclusion that the Commission has responded vigorously only when governments or powerful interests came under attack. This evidence suggests that balance performs an ideological function in that it is more likely to be enforced when powerful institutions are threatened. "Balance" is thus really constrained to balancing the opinions of elite groups.

The 1980s saw two contrasting examples of the ambiguities of the balance requirement in an era of the multiplication, if not qualitative diversification, of broadcasting services. The religious broadcasting hearing (CRTC, 1982) opened up the hitherto taboo idea that a "special interest" religious station be licensed. The CFRO case (CRTC, 1988a; 1988b), arising in the "community broadcasting" sector, challenged the conventional view of licensee responsibility. Where the received wisdom was that licensees were obliged to exercise editorial power so as to provide a representative balance of views, in this case the licensee proposed to substitute a procedure of access for citizens and citizen groups.

Religious broadcasting

Controversy over broadcasting on religious matters was a prominent feature of the early days of radio broadcasting in Canada in the 1920s and 1930's. Since that time, regulatory bodies have carefully avoided licensing religious broadcasting stations. In recent years, the traditional policy has increasingly been questioned by religious groups seeking a licence, to such an extent that the Commission decided to call a public hearing on religious broadcasting, held January 26-29, 1982 (CRTC, 1982). In the two years prior to the hearing, the Commission had denied two applications for religious licences: by Canadian Family Radio Ltd. for an FM station in Vancouver (CRTC, 1980), and by Crossroads Christian Communications Inc. for a Canada-wide television network licence (CRTC, 1981b). In its Notice of Public Hearing for the religious policy hearing, the Commission outlined the nature of its present policy position on licensing religious broadcasting undertakings (CRTC, 1981c):

The Commission's position of not licensing denominational broadcasting stations or groups proposing to provide an essentially denominational programming service is based on the provision of the Broadcasting Act. The present Act, like all previous broadcasting legislation, requires that the programming provided by the Canadian broadcasting system present a "reasonable, balanced opportunity for the expression of differing views on matters of public concern." The Commission and its predecessors have held the view that a denominational station would by definition carry a particular point of view and, therefore, find it extremely difficult to satisfy the "balance" requirements of the Act. Because the number of radio and television frequencies available for assignment in any community is limited, it was considered to be impossible to grant a licence to every special interest group. Mindful not only of the above concerns but also of the desire expressed by people of many faiths to receive religious programs, the Commission has stressed that stations broadcasting religious programs should provide variety and balance in them, and be responsive to the needs and wishes of communities they are licensed to serve. The Commission has also stated that it places a value on Canadian production of such programs.

There was a wide spectrum of opinion at the hearing as to the scope of religious broadcasting, although there tended to be general agreement among the participants that existing religious programming was not adequately meeting the needs of the communities across Canada. To a large extent, the proposals put forward to improve the state of religious broadcasting were explained in terms of particular interpretations of the balance requirement of Section 3 (d) of the Act. The conventional interpretation saw the balance in the system as a whole arising out of the duty of each broadcaster to provide balance in programming, both in the points of view expressed in them, and in the types of programming carried in the schedule, with the overall goal of meeting the diverse needs of the community in which the licensee is located. In contrast, an alternative interpretation of balance, used predominantly by those who supported the granting of religious licences in some form, emphasized that balance should be seen primarily in the context of the broadcasting system as a whole. Religious and other specialized stations should be licensed if this would provide a balance to existing forms of programming in the system. Many briefs, no matter what position they took on religious licences, expressed dissatisfaction with the content options provided by the present commercially based element of the broadcasting system which, it was claimed, could itself be regarded as a "special interest" group:

The commercial broadcaster is not a "neutral," "balanced" or "universal" broadcaster, it is rather a particular type of broadcaster who selects programs according to its own interest in and commitment to profit making. This is one reason why the CBC is so necessary as a partial counterweight.

With slight exception, [private broadcasting] has led to a chase after ratings, a predominance, in TV, of American programs, to an overwhelming focus on resultant idiotic advertising, and to a numbing sameness of programs from station to station. We are offered a choice of sitcom A, sitcom B and sitcom C, but when it comes to a choice from diverse, wide ranging and critical views of politics, of history, of art, of religion, then we are generally served up with mush, occasionally spiced by the spectacular and the sensational. (CRTC, 1982e, p. 16)

Those who wanted to see more evangelical Christian programming, preferably on a separate channel, offered the additional criticisms that much of the present advertisements, TV drama, and popular rock music expressed views of the world which were humanistic (as opposed to Christian), materialistic, hedonistic and nihilistic. A licensee providing Christian religious and associated "family" type programming would, it was contended, balance these forms of degenerate secular programming (e.g. CRTC, 1982f; 1982g). Many briefs also pointed out that the idea of licensing specialized programming channels such as a religious channel was not inconsistent with other Commission policies enabling the licensing of specialized FM stations, the community cable television channel, multilingual stations, and non-profit community stations (CRTC, 1982e, p. 12).

Accompanying this system-wide view of balance was the belief that an abundance of channels was becoming, or already was, available to accommodate many more specialized programming licensees. For some, at least, this implied that plenty of spectrum space would be available for those religious groups interested in broadcasting. Thus the fundamentalist Crossroads Christian Communications Inc. believed that rather than attempting to accommodate all religious views on one channel, on a program-by-program basis, it would be preferable if each religious group had its own stations (CRTC, 1982a, p. 670).

The major objection to the system-wide balance argument was that it would mark the beginning of a basic change in Commission policy and in the structure of Canadian broadcasting. Once a religious licence has been issued, political parties and other "special interest" groups might feel entitled to licences as well. The implications of this policy change is perhaps best expressed in the brief of the Canadian Broadcasting Corporation:

[The] notions of balance and fairness lie at the heart of the broadcaster's responsibility. Recently, it has been argued that advances in technology have made available so many channels that the traditional basis of regulation -- the relative scarcity of public frequencies -- may be set aside or, at least, modified. While we may traditionally have insisted on balance within each service, the expanding communications environment now permits the allocation of single purpose frequencies, and the balance requirement, so the argument goes, may shift from individual services to the system as a whole. But a shift from service to systemic balance also moves the responsibility for maintaining that balance from the individual licensee to the public regulatory body. Unlike the individual broadcaster, however, the regulatory body cannot create systemic elements of its own accord but must depend on others to propose elements which it may then affirm or deny. So, quite aside from placing the direct responsibility for content balance in the hands of a body which, traditionally, has borne no such weight, proposals for systemic balance would create the impossible situation of conferring responsibility without the powers appropriate to its execution. In a similar vein, it has been suggested that such an open system would be self-regulating; that access would be available to such a wide variety of factions that overall balance would naturally result. The CBC feels that this, too, must be considered with caution. It is quite clear that there are myriad, very real factors that could severely limit this access. For one thing, access would be available only to those who could afford it. Further, access would be appealing only to those whose message admitted of a style of delivery suitable to the electronic media. And, as has been discussed above, the CRTC could have no means of causing balancing factors to take up the challenge of access. (CRTC, 1981c, p. 7-8)

Aside from the desirability or otherwise of these policy changes, some doubted that frequencies were as readily available as others seemed to believe. AM radio and VHF slots were virtually full, although some FM frequencies remained. Potential for expansion lay with low-power licences, UHF, closed circuit FM, cable television and satellites, although upgrading to 35-channel cable systems and market penetration of converters was by no means fully accomplished. The system-wide notion of balance extrapolated from the FM policy was thus rejected by some because it would open the way for the licensing of any number of sectarian groups, presenting a major challenge for the CRTC's own role and policies, and moreover would quite likely be impractical in the short or medium term in the light of existing system design and capacity.

But even assuming that frequency space was a limiting factor, was there sufficient reason to reject, in principle, the idea of licensing one or more religious stations? Several participants suggested that a religious licence application could be treated just like any other application, and judged according to public interest criteria, of which the balance requirement was one. Some participants addressed this question in relation to the actual applications made previously by Canadian Family Radio Ltd. and Crossroads Christian Communications Inc., bothconsidered to be predominantly evangelical Christian in orientation. Among the concerns of those who doubted that undertakings offering this form of Christianity could meet the balance requirement, were the association of fundamentalist groups in the US with conservative (laissez-faire) political ideologies, their emphasis upon traditional and restricted roles for women, and the potential for social polarization caused by the proselytizing approach of such groups. In addition, political opinions on issues outside of Canada were sometimes expressed on imported US electronic church programs, and some participants believed these would need to be balanced by differing views if they were to be aired on Canadian stations (CRTC, 1982a, p. 665; 1982b; 1982h; 1982k; 1982m). Overall, it was believed a heavy burden would be placed on the CRTC to monitor such stations, given their controversial nature, and it might be politically embarrassing if the Commission found itself having to discipline them (CRTC, 1982d; 1982j).

Those who held this view against licensing religious stations generally had in mind what may be termed "denominational" stations, although as noted above, this term is not strictly appropriate to describe the backers of the electronic churches. There were, however, those who opposed licensing of electronic church-style stations but nevertheless believed it possible to establish a religious station constituted in such a way as to represent the diversity contained in the nineteen or so religious groups in Canada, and thus avoid narrow sectarianism on the part of the licensee. Not all proponents of this idea were strongly advocating that it be done; however, they offered their proposals in case the Commission found itself under irresistible pressure to license a religious station. Proposals in this vein usually involved either setting up some form of participatory organizational structure for religious group participation in broadcasting decisions, or some form of content regulation by the CRTC, or a mixture of both. Interchurch Communication, representing most of the major denominations in Canada, proposed that the Board of Directors of a religious station or network should include representatives from religious groups within the signal area; the program schedule should reflect the variety of religious perspectives in the community; and programming should be basically Canadian (CRTC, 1982i). In addition, a Program Advisory Committee should advise on program development and apportionment of time between various groups (CRTC. 1982a,pp.400-4110; 1982i). A step further from the "advisory committee" model was the proposal by the Committee for Justice and Liberty Foundation for an adaptation of the Dutch broadcasting system, which allocates funds and time for broadcasting by a variety of political and religious groups according to the amount of membership support each group can generate. The emphasis here was more on a system of "proportional representation" where groups could have involvement in producing their own content, and not just an "advisory" role. Ownership and operation of the station would be in the hands of a separate government body tending to operate solely as the "common carrier" of content produced by these various religious groups (CRTC, 1982e).

The hearing on religious broadcasting allowed for a thorough consideration of the many sensitive issues which had for many decades been the reason that religious licences were not granted. The hearing also represented perhaps the "finest hour" of the balance requirement, and certainly the most detailed public discussion of the different ways in which the balance requirement might be met. It highlighted the question of "system balance," or the lack of opportunities for expression of different religious faiths and points of view in the system as a whole, when compared to the points of view already promulgated through the commercial media. And it suggested that a "point of view" can be understood on many levels, from the expression of a single individual to the ideological patterns of content evident in the programming of a licensee as a whole, including dramatic programming, game shows, sitcoms and advertising. A significant number of participants supported an access or council model of broadcasting in order to enable the licensing of a religious station which would not invite the heated controversies and abuse of the past. Indeed, just such a station was eventually licensed several years later.

Community Access Broadcasting

Vancouver Co-operative Radio, CFRO, is one of only two English-language community access radio stations in Canada. Community broadcasting is the only sector with explicit responsibility to provide access, reply, and programming opportunities to members of the community at large, although this principle has been given no articulation in the existing or proposed statutes. The mandate of the community radio sector, as articulated by the Commission in 1975, explicitly recognized its operations as "accessible and responsive to the community," and notes its "innovation in the areas of program formats and audience feedback" (CRTC, 1975,p.15). The Commission currently defines a community radio station as one

characterized by its ownership, programming and the market it is called to serve. It is owned and controlled by a non-profit organization whose structure provides for membership, management, operation, and programming primarily by members of the community at large. Its programming should be based on community access and should reflect the interests and special needs of the listeners it is licensed to serve. (CRTC, 1985, p. 9)

CFRO has developed, over the fifteen years it has been on the air, a procedure for organizing access to the airwaves. The Commission has endorsed, in accepting CFRO's Promise of Performance, a specialized role for the station in the Vancouver market: it is mandated to "provide information that is not now available or easily accessible to the general public," and, in the area of public affairs programming, to focus on "social movements typically denied access to the media -- such as the labour, women's, gay liberation, environmental and peace movements" (Vancouver Cooperative Radio, 1983; CRTC, 1983).

CFRO pursues this mandate through democratic operation at all levels. It is incorporated as a cooperative, which means that every shareholder has one vote regardless of the number of shares they purchase; any member of the public may become a shareholder by paying two dollars (subject to Canadian ownership requirements). All shareholders retain membership in good standing by paying annual dues of thirty dollars. An Annual General Meeting of members in good standing elects an unpaid Board of Directors whose staff and standing committees do the day-to-day administrative and technical work of the station. All programming work must be done on a volunteer basis by members: none of the four-and-a-half employees are paid to produce programming. Programming decisions are made by an "arm's length" Programming Committee which, although constituted as a committee of the Board, is mostly made up of representatives elected by the programming volunteers, and supplemented by staff, Board, and "at-large" audience representatives. The Programming Committee's meetings are open to all members of the station to observe (as are the Board's), and there is an appeal procedure for all Programming Committee decisions as well as a range of policies which may be used in the case of disputes over technical quality, volunteer integration, or responsiveness to intended audiences. Audience-members who are also members of the cooperative may gain access to the airwaves by joining an existing programming group or by forming a programming group to apply for a new program slot. Members" and non-members" views on reported topics, submitted by telephone or in writing, are also regularly aired, and programs which elicit complaints are expected to invite the complainants to present their views during the programs in question.

Community broadcasters have sometimes found it difficult reconciling the notion of an editorially-produced content balance, originating in a fiduciary conception of the role of professional journalists as surrogates of the public, with the actual range of views represented in a public media discourse generated from citizen access opportunities. This tension has been no more clearly evident than in the events flowing from a written complaint to the CRTC against CFRO in October 1987. The complainant's central allegation was that the CFRO program Voice of Palestine was unbalanced because it did not present the view of the Israeli government. CFRO pointed out in reply that it had offered the complainant an opportunity to present this view on the program, or on other station programs, but that these offers had been declined. The Commission, meanwhile, offered no comment. Then in February 1988, the complainant again appeared before the Commission, during CFRO's licence renewal hearing. CFRO again offered the complainant the opportunity to present his view on air; and the complainant again rejected this offer, insisting that the station was itself obliged to research and present a "balancing" viewpoint on all controversial issues. On this occasion the Commission took a close interest, and questioned the CFRO representatives as to what steps would be taken to ensure that the station's programming (and the Palestinian program in particular) would be balanced in future. The tone of this exchange suggested that the Commission was so seriously concerned about this matter that the renewal of the station's licence might be in question.

It was at this point that CFRO members began to realize that by "balance" the Commission meant something other than the range of views actually articulated by citizens in public debate, and that offering listeners an opportunity to participate in programming, and a right of reply to existing programming, did not constitute an adequate route to achieving the Commission's version of "balance." It was not clear, however, just what was meant by "balance," and this raised a number of questions for the station's directors and volunteers: against what abstract standard of "balance" was the range of views volunteered by the station's members and audiences to be measured? What selection of views constituted a "balanced" range? Which issues did, and which did not, trigger this obligation? How was the station to know when it had achieved "balance," and thus met its licence obligations? Was the Commission prescribing imitation of the public affairs coverage of, for example, mainstream commercial broadcasters, whose programming "balance" seemed to be acceptable to the Commission? If no volunteers came forward to present contrasting views, was the station obliged to change its internal policies and hire professional journalists to augment the volunteer programming (which it could not afford)? And what should the station do if it suspected (as in this case) that the complainant's views verged on abusive comment?

The Commission's official response to the issues raised by the complaint made at the hearing was not to come for several months. In the meantime, however, Co-op members initiated a review of policies, procedures and programming concerningbalance, access and complaints, in order to generate discussion among members, and to prepare the ground for dialogue with the CRTC. A workshop on the issue was convened for staff and members, a new "right of reply" program was introduced, as well as a new complaints procedure. In addition, CFRO made a detailed submission to the CRTC concerning a Commission proposal (subsequently dropped) to tighten up controls on open line programming (CRTC, 1988a; Vancouver Cooperative Radio, 1988), in which the station offered a detailed explanation of its access procedures, and how they contributed to freedom of speech on the airwaves.

When the Commission finally did issue its decision in the licence hearing, it represented one of the more vigorous actions the Commission has yet taken with respect to the balance question. Not only did the Commission give CFRO an abbreviated licence (thirty-four months instead of the usual sixty), but it also issued, along with its Decision, a Public Notice on "Balance in Programming on Community Access Media," in which the Commission stated that "it may be necessary for the licensee to use its own resources to produce or acquire programming in order to satisfy the balance requirement." In short, the Commission took the position that the community access broadcasters were to be treated no differently than any other non-access broadcaster. In addition, the licensee was, as a Condition of Licence, required to submit a report within six months outlining "how the station intends to meet its balance obligation" (CRTC, 1988b; 1988c).

CFRO's initial response was to seek leave to appeal the Decision to the Federal Court of Appeal, on the grounds that it was a misinterpretation of s.3 (d) of the Broadcasting Act, and that the Commission's guidelines as to what constituted "balance," "reasonable opportunity," and "matters of public concern" were vague and unclear. However, leave to appeal was denied, the Court giving no reasons for its refusal. Reluctantly, therefore, the station prepared a report as required by the Condition of Licence, outlining the policy reviews it had undertaken, and the new access and complaints procedures. The report protested, however, about the vagueness of the Commission's guidelines on balance. CFRO programmers, it claimed, had no way of knowing in advance which issues might trigger the balance requirement, which range of views was to be considered proper or adequate, and no means of judging when the freely offered opinions of audience members do or do not meet an undefined standard of the CRTC. The report claimed that CFRO was unfairly exposed to sanctions due to the Commission's vague guidelines.

The Commission replied in no uncertain terms in August of 1989, asserting that: "...CFRO has not provided any evidence that balance is achieved in the overall programming. It would appear that, notwithstanding the renewal hearing and decision, CFRO is still not satisfying the balance requirement..." (CRTC, 1989). Another report was demanded. However, the Commission offered no response to the difficulties in defining balance identified in the report. CFRO's position was by this timebecoming desperate. All during this period it had been receiving a steady stream of complaints about Voice of Palestine. However, whenever CFRO offered the right to reply, complainants refused, preferring to initiate a complaint through the CRTC. In September of 1989 CFRO received a complaint from the Canadian Jewish Congress. The CJC, too, was invited to present its view in a special open line program on the topic, "Has the media coverage of the Israeli-Palestinian Conflict been fair?," but it declined. In a letter to the station, the CJC said that it was unwilling to appear on air until it considered CFRO programming to be already balanced in accordance with previous CRTC directives. CFRO then circulated this letter to a number of other complainants, in an effort to convince them to speak on air and "balance" its programming, still to no avail.

Finally, in October, the station submitted another report to the Commission (Vancouver Cooperative Radio, 1989) highlighting changes in the complaints procedure which ensured that the Board of Directors was alerted when complainants raised matters of public concern. In addition, the report described the difficulties encountered in getting complainants to participate in the access mode of broadcasting. Most significantly, however, the report described two "new steps taken." First, a "Community Relations Committee" had been struck, part of its mandate being "to assist programmers in seeking out a variety of views on controversial issues." In particular, the committee was said to be working on enhancing the station's coverage of issues in the Middle East, including the Israeli-Palestinian conflict, and was ensuring that "individual and organizations with widely varying views would be invited to participate." Second, the report announced a new biweekly, half-hour evening programm on "issues of concern to British Columbia's Jewish community," which would be produced in conjunction with the editorial staff of Outlook, a national Jewish magazine published in Vancouver. It was expected that the Israeli-Palestinian conflict would be "a major focus" and that "interviews with Israeli citizens visiting Vancouver will be prominent." The report noted that "in the particular case of the Voice of Palestine program, Co-op Radio has taken a number of steps in an attempt to meet the balance requirement through other programming." The station also pointed out that its uncertainty regarding the Commission's definition of "matters of public concern" had only been increased by the Commission's dismissal of yet another complaint against the station, this time concerning its coverage of the civil war in El Salvador. The Commission had informed the complainant in this instance that this issue was not a matter of public concern, again without explaining how this was determined.

The Commission's response of January 1990 (CRTC, 1990) acknowledged the various procedural steps which CFRO had set up for handling of complaints, and welcomed the setting up of the Community Relations Committee. The letter attempted to defend the Commission's policy, stating that matters of public concern could not be defined in the abstract but were dealt with on a case-by-case basis, according to complaints received. The letter noted that, in a given community, "the existence of diverse points of view may certainly provide a good indication that there is a related obligation to ensure that the various points of view relating to the issue are presented." Significantly, the letter also noted that, in the case of the Israeli-Palestinian conflict, "the opposing views need not be aired within the Voice of Palestine itself: they may also be presented in discussions on this topic in [other public affairs] programs." The letter then concluded that, in view of the actions described in the two reports which CFRO had submitted, the Commission was now satisfied that the special Condition of License requirement -- to report to the Commission on how it was going to achieve programming balance -- had been met. The Commission did not say whether it now considered the station's programming to be "balanced."

Balance, Access and Citizenship

The CFRO case was a kind of bureaucratic interaction ritual in which the Commission had no interest in debating the merits of the balance requirement, but rather wanted CFRO to affirm that it had taken steps which were consistent with the policies which the Commission applied to all licensees. Thus CFRO's repeated descriptions of its access policies, and improvements thereto, drew no support from the Commission. It was only when CFRO's Board of Directors indicated that it was intervening in an editorial capacity in the station's voluntary programming regime, in order to elicit the specific programs and points of view sought by some intervenors, that the Commission was satisfied. It might be suggested also that the Commission relented at this point because it was seeking a way to end this embarrassing impasse. But it relented only when CFRO pulled back from its defence based on access and its critique of the balance requirement. At no time did the Commission accept the offering of right of reply or access as a means of balance. In essence, this means that the Commission ignored the unique characteristics of access stations.

The fact that the Commission took what is probably the strongest action ever against a licensee over balance is explained partly by CFRO's adversarial critique of the balance requirement. The Commission was in effect disciplining the station for stepping outside the conventional wisdom of the Commission. In addition, the complaint was backed by the CJC, a relatively powerful intervenor. That the Commission took vigorous action in this case is thus consistent with earlier evidence the Commission is most responsive to complaints from more powerful institutions. This pattern of enforcement raises serious questions as to how well the balance requirement really prevents the airwaves from falling under the control of the wealthy and powerful, as the Commission professes.

In the case of religious broadcasting, the balance requirement was employed as a quite different instrument. There it facilitated an instructive debate about access to licences in the broadcasting system. It also served to prevent the issuance of licences for the kind of electronic church which is familiar in the United States, and which many Canadian did not welcome. To that extent at least, the balance requirement in this case operated positively. What is interesting is that the model of religious broadcasting which was finally accepted was close to the access model of community broadcasting. Problems of balance were to be overcome structurally by ensuring access to a diversity of religious groups. This indicates a significant modification of the decades-long policy of refusing access to "special interest" groups (as well as the continuation of an unresolved tension between "balance" and "access" within its enunciated policies).

What is particularly interesting about the religious hearing, is that it exploded (not for the first time, but in a novel way) the idea of the objectivity of the commercial media. The fact is that the commercial media are special interest groups in the precise sense that their structure determines their content. Because media firms which compete for advertisers imitate the most commercially successful selective routines of other media outlets (see e.g. Altheide, 1976; Clarke 1981), it is possible to say that they exhibit a "commercial bias," without in any sense imputing to them a conspiracy to distort or impoverish public discourse. Given, simultaneously, the demanding regulations under which they exercise trusteeship of their respective parts of the radio spectrum, and the extremely competitive environment in which they do business, it is rational for them to priorize commercial considerations in the selection and representation of public issues. Risks are hard to manage in such a business, and any degree of predictability is hard-won.

Those firms which blend all of these demands most skillfully--diversity of content, competitive efficiency, regulatory propriety -- will in fact be the long-term survivors in these markets. The problem here is that whatever framework or system of selection and representation is employed by dominant firms, its implicit values are then the point across which other views must be balanced, and will -- by tautology -- turn out to define the median opinion. The tendency to imitation among the majority of licensees (the commercial sector of broadcasting) renders the commercially optimum range of views so ubiquitous and monolithic in the attention of the public that any departure from it appears "biased" and "unbalanced."

The fact that an "imbalance" only surfaces to view when a complaint is made is a further difficulty in determining whether commercial (and state) licences are balanced. If there are few complaints against commercial broadcasters, does that mean they are balanced, or does it mean that aggrieved or excluded groups have insufficient resources to mount effective complaints? Or does it mean that the Commission refuses to acknowledge the ideological elements of much news and current affairs (e.g. limitation of debates to a range of elite perspectives)? Is it also possible that the supposedly balanced stations, in keeping with their commercial priorities, simply avoid controversial topics as far as possible? The refusal of the Commission to address the issue of balance in, or right of reply to, advertising is also a major and symptomatic silence on the Commission's part. Finally, is it not strange that commercial stations, without any rights of access or reply, can escape the Commission's sanctions, while a station with elaborate access procedures does not? If the Commission welcomes a Community Relations Committee for CFRO, is there any great likelihood that a commercial station does not have an equal need for one, or any good reason why it should not also have one?

In effect, the balance requirement acts as an insulating shield for broadcasters, and also provides a safety valve to vent the steam generated by powerful pressure groups. It effectively prohibits citizens a right of access to broadcast media, yet it offers no concrete alternative procedures for registering and dealing with complaints, in view of the Commission's complete discretion in regard to investigating them. In short, the balance requirement underwrites the stability of the existing broadcasting institutions in a way which limits their public accountability.

It is, we suggest, a dangerous pretence to elevate the notion of content balance into an element of regulatory terminology. Balance cannot operate as a rigorously objective concept:

The term "balance" has no objective meaning in this context [of government regulation], for there is manifestly no scale or reference mark that assures people with opposing interests that an equilibrium has been reached in the way that a butcher's scale satisfies both the seller and the buyer that a quantity of meat weighs a pound. In politics, references to a "balance" are common because they help win general acceptance for the values of those who use the term. This is an appeal for support, not a form of measurement, though its users are likely to deceive themselves as well as others into believing that they are being objective. The use of the term "balance" in political and legal rhetoric exemplifies a categorization that makes an effective appeal because it presents itself as descriptive rather than polemical. It is another instance of governmental language that is preeminently a means of inducing acquiescence in deprivation and of stilling the qualms of those who benefit. (Edelman, 1977; see also Hackett, 1984)

The problem of content balance is, at bottom, a question of whose views will be accepted and disseminated by the media, and also a question of the standards and procedures they employ in this selection (see e.g. Hackett, 1985). The more permeable the airwaves are to the voices and views of all sectors of the public, the greater their ability to fulfill the public interest by presenting all sides of debates on public issues in the communities for which licenses are granted. But as former Conservative Minister of Communications David MacDonald once observed, we have instead a situation where "centralization of media control ... has reduced opportunities for individual expression, which is the purest form of balance" (Macdonald, 1981,p.6).

MacDonald's comment highlights the main principle which should be emphasized in rethinking the issues surrounding the balance requirement. Especially in this foundational period of interpretation of the Charter of Rights and Freedoms, broadcasting policies ought to reflect careful attention to the principle of freedom of expression (encoded in S. 2 (b) of the Charter), and to the construction of appropriate fora in which citizens can engage in debate and discussion which may be expected to effect policy decisions. The balance requirement has become outworn and ineffectual in this regard. It is in fact the regulatory correlate of the elitist conception of democracy, in which most citizens are considered unqualified for more than a passive role as observers of the political scene (see Macpherson, 1977,Chapter Four). The balance requirement's focus on the citizen's "right to hear" differing points of view occludes the fact that the citizen has no right to speak over the airwaves (see Ruggles, 1991). Active citizenship has been sacrificed for passive citizenship.

A new direction is required in broadcast regulation which will foster the development of active and competent citizens. Given that balance is an arbitrary and politically defined concept, enforced inequitably, it is not an appropriate starting point for a new regulatory regime. Instead the starting point should be the provision of more opportunities for citizens to speak within the broadcasting system. Whatever high level of integrity and professionalism Canada's tradition of broadcast journalism may claim, the constitutional purpose, and the compatible principles originally set out by the BBG, are not fully satisfied, we believe, by consigning most citizens to the passive reception of viewpoints, and the elevation of journalists as the exclusive representatives of public debate. The view that licensees are responsible for representing the views of citizens should be increasingly supplemented by the view that citizens should speak for themselves. J.S. Mill, in On Liberty, lucidly affirmed the importance of hearing directly from the holders of controversial opinions rather than intermediaries:

Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest and do their very utmost for them. (Mill, 1971, p. 47)

There are several ways in which more direct public access and participation in media could be implemented. First, this could be accomplished through providing time for access and right of reply programs on conventional broadcast outlets. A right of reply, above and beyond the provision of access to citizen programming groups, is an important further safeguard of the public interest in the airwaves. Regular airtime should be provided by all licensees, as an immediate minimum standard of public interest accountability, for the expression of all non-abusive citizen comment on public issues on a waiting-list basis. Comment should be in the form of pre-taped calls or letters to be read on-air, in order to eliminate abusive material. A right to reply is necessary to ensure that the airwaves cannot be captured by private interests. Second, creation of community media councils allows citizens to participate in debates about media content. The Commission has already provided materials which suggest how accountable procedures for airtime allocation and appeals could be implemented. In 1974 the Commission published a collection of papers on the subject of community access to the broadcast media which contained a discussion of the concept of community media councils for community cable channels (CRTC, 1974). These closely resemble the decision-making structure of CFRO.

While important differences exist between the organizational forms appropriate to large and small population centre, the viability of democratic procedures for allocating and programming airtime is affirmed in all cases studies. Whether the access time provided by all licensees in a given market should be administered by a single community council (as may be suitable for small centres), or separate councils encouraged for licensees grouped by medium, or even for each licensee (as may be suitable for larger centres), the community council form is clearly capable of developing to the point of being able to assume direct responsibility for the programming it sponsors (see Cook, 1982, Chapter Four). A corresponding relaxation of public affairs responsibilities of licensees might be reasonable at that point.

In order to complement these increased opportunities for public speech, one area of public regulation, that relating to abusive comment, should be strengthened and made more explicit. Abusive comment was one of the main reasons for the balance requirement in the first place. Rather than continuing with the balance requirement with its vague but general applicability, it is more appropriate to dispense with it and introduce regulation which will address the specific problems at hand. There is a public interest in constraining particular public speech actsin pursuit of a broader collective freedom of speech; to this extent, prohibition of abusive comment on racial, sexual, or religious grounds should be tolerated. The Commission should develop more detailed definitions of abusive comment, and couple firmer regulation in this area with enforced relaxation of licensees" control over citizen expression which is not abusive. The open line format could be one part of such an initiative, but must be supplemented with procedural innovations and provision of airtime for other access formats. The emphasis should be on democratizing the access procedure, training citizens to participate in production, and developing a spectrum of programs and formats which fairly represent the communicative interests of all citizens.

The key point to be borne in mind when assessing the balance requirement is that its ultimate justification is supposed to be the invigoration of democracy through the production of information for and by its citizens. Its purpose is to enable citizens to function competently in a democracy. And, we suggest, the best way for that to happen is for media themselves to be further democratized, rather than be subject to discretionary bureaucratic constraint.


At the time of this writing a new Broadcasting Act has received Royal Assent -- but is not yet declared in force -- after residence on the Government's order paper for some three years, a period spanning two prorogations and one election. Readers should note that wording of this element of the public interest standard is altered in the new Act (s. 3(1) h) to:

"The programming provided by the Canadian broadcasting system should (i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men and women of all ages, interests and tastes, [and]... (iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern..."

While splitting the existing balance standard into two separate clauses enacting apparently divergent legislative intentions may presage a departure from the pattern of balance regulation to date, it is far too early to know in which direction it might go. This paper focuses on the interpretation and enforcement up to the present time, of the balance standard articulated in the Broadcasting Act of 1968.
The community broadcasting sector has been established by CRTC policy, beginning with the FM Radio Policy, 1975. The Department of Communications" 1986 Task Force on Broadcasting Policy (Caplan-Sauvageau Report) recommended that the community broadcasting sector be recognized in the new Act (Caplan-Sauvageau, Chapter 19). This proposal was rejected by the House of Commons Committee charged with making recommendations for the new Act, on the grounds that the balance requirement itself made recognition of an "access" sector unnecessary (Standing Committee on Communications and Culture, Proceedings, Issue No 36, 4 May 1987, s. 4.2.5, p.38). The new Broadcasting Act mentions "community programs," (s. 3[1]h[iii]), but does not define a community broadcasting sector or mandate.
The U.S. Supreme Court has employed a useful distinction in some of its First Amendment cases, between abridgements of speech, and abridgements of freedom of speech. The wording of the First Amendment taken perfectly literally, forbids the latter but not the former. The source of this subtle distinction is Alexander Meiklejohn's 1948 work, Free Speech and Its Relation to Self-Government, in which he points out that regulation of speech-situations, especially those connected with a community's self-government, is necessary to any process of collective deliberation. The First Amendment, in Meiklejohn's view, (and arguably S. 2 (b) of the Canadian Charter also) aids self-government by protecting the "collective thought-processes of the community" (Meiklejohn 1948 [1965]: 26). Thus, rules of order and rules of standing, such as those employed by the chair of a town meeting, actually further the capacity of the assembled citizens to hear a full range of views, to have their own views heard, to avoid irrelevant disruptions, and to arrive at reasoned conclusions. The speech of any individual (especially windbags and loudmouths) may well be abridged by these rules, but only in order that everyone's freedom of speech may be enhanced. The U.S. Supreme Court has employed this distinction in resolving conflicts both between First Amendment interests and other values (e.g. Kovacs vs Cooper, 336 U.S. 77 [1949]), and among competing First Amendment values (e.g. Red Lion Broadcasting v. FCC, 395 U.S. 367 [1969]).


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