By Ahmad Hathout
Akash Broadcasting Inc. has been granted a hearing at the Federal Court of Appeal over a decision by the CRTC to reject its buy of AM radio station CKMX in Calgary.
Akash, an operator of ethnic stations, had entered into an agreement with Bell in 2024 to acquire the assets of the station, which has been off-air since June 2023. It then went to the CRTC for approval of the transaction.
In October, the CRTC denied the application because it came while the commission reviewed applications for another commercial radio station in the city. Akash’s application came approximately two months after the CRTC made a call for applications, which Akash answered, to serve that market with one additional station.
“The Commission notes that the Calgary market is already well served by a large number and variety of commercial stations,” the CRTC said at the time. “It considers that the relaunch of CKMX would have a limited impact on enhancing the diversity of the market. The Commission further notes that the ongoing Calgary Call will be an opportunity for operators of diverse backgrounds, including Akash, to present their plans to serve the Calgary community, which reduces the potential benefit of reviving a station that has been off the air, like CKMX.”
Akash argues the CRTC, which found that its application was not filed improperly, made two major errors in its decision. First, that the regulator allegedly treated CKMX as a new radio station application instead a dormant one with an existing licence that had not been properly revoked.
“In denying Akash’s application because the majority viewed the Calgary market as already well served, the CRTC effectively treated the CKMX licence as revoked,” Akash said in its court application. “The CRTC exceeded its jurisdiction, in so doing, having not followed the requirements of a public hearing on notice under the Broadcasting Act,” which includes a notice and public hearing if the licence holder does not consent.
“The majority chose to de facto treat the licence at issue as being revoked within the context of an non-appearing, administrative proceeding for a Change in Control Application,” Akash alleges.
Second, the CRTC allegedly improperly applied “improper and irrelevant” considerations from the Calgary Call, which it argues departs from established regulatory policy of making such transfer decisions on their own merits.
“It further applied irrelevant considerations to a Change in Control Application that are suited to an application to allow a new station rather than the considerations that have been consistently applied on applications to change ownership of an existing station – namely, absent foreign ownership or concentration of ownership concerns, the tangible benefits test of 6% of the transaction value,” Akash added.
Akash’s leave to appeal application went unopposed.
Ontario Commissioner Bram Abramson dissented from the majority opinion, noting the rarity of denying transfer applications and arguing the CRTC crossed the “two streams” that separated decisions on new radio station licence applications and the transfer of existing ones.
“It is difficult to know what to make of the approach to take into account an ongoing call for new licences in evaluating a transfer application,” Abramson said. “Either there are two streams or there are not. Either it was procedurally proper for Akash to have filed separately, or it was not. The Calgary Call, made on the basis of a market capacity assessment, did not revise its findings based on the additional frequency left vacant by CKMX’s exit.
“Nor ought it to have, at least based on the two-streams approach the majority has now, in my view, destabilised,” he added. “The Calgary Call was based on unused frequencies in the market. The CKMX transfer would have rehomed an already-used frequency.”
Calling the majority decision “unusual and underspecified,” which may make it difficult for future applicants to navigate, Abramson said the result is the shrinking of the number of radio station in the city and the exclusion of a “group that was willing to invest in the declining AM radio band.”
Had the CRTC been concerned that Akash would have transformed CKMX into an ethnic player that threatened others in the market, the commission could have conditioned the approval by limiting its ethnic programming, Abramson said.
“The concerns raised could have been addressed through a simple condition of service or, failing that, re-depositing the frequency into the Calgary Call,” Abramson said. “Neither was seriously considered.”
In the same decision denying the transfer of CKMX, the CRTC approved Akash’s buy of Bell’s radio station CFRW-AM in Winnipeg.
Photo via Google Maps
