OTTAWA – Cabin Radio, the online news radio station that was denied by the CRTC an FM licence in Yellowknife, has filed an application for the Federal Court of Appeal to hear its case.
The appeal, which was received by the court last month and filed Wednesday, charges that the CRTC’s February decision was “unreasonable, incorrect, and arbitrary due to errors of law, jurisdiction, and fact.”
The regulator’s decision said the addition of another FM station would financially harm the incumbent and only commercial station in Yellowknife, Vista Radio’s CJCD-FM, which has experienced declining revenues in the five years before the pandemic and after in an environment with declining profitability. It also cited nationwide declining radio revenues.
But in its arguments submitted to the court, Cabin Radio said the decision exclusively focused on economic reasons for denying the application instead of the CRTC’s core jurisdiction, which is the promotion of “content, original programming, or ensuring programming is diverse.”
“Nowhere does the Broadcasting Act expressly authorize the CRTC to refuse to entertain an application where the CRTC determines that the market cannot bear another licence, or that issuance of a new licence may threaten the viability of an incumbent broadcaster,” the complaint said, arguing the regulator has no jurisdiction in this realm.
“In fact, nowhere does the Broadcasting Act grant the CRTC jurisdiction to conduct a “market capacity” assessment as part of a licence application at all,” it added. “Nor can such powers be necessarily implied, as it is not necessary for the CRTC to conduct a market capacity assessment in order to obtain its objects.”
The station also argues that the CRTC did not follow the Broadcasting Act’s requirement to regulate the system in a manner that “facilitates the provision of broadcasting and Canadian programs to Canadians,” serves to “enrich and strengthen the culture, political, social and economic fabric” and encourage the development of Canadian expression.
The complaint also alleges the CRTC “refused to even consider” evidence given to it by the station, arguing that this means the regulator failed in its duty to procedural fairness.
Shortly after the CRTC’s decision, the station reapplied to the CRTC for a licence and requested that the regulator lift a two-year moratorium on such reapplications because of what it conveyed as unique circumstances in this case – which included the aforementioned complaint and the 42 months between licence application and commission decision.
“The process followed by the CRTC is a story of administrative neglect and bungling that has resulted in real prejudice to the applicant and the community it serves,” Cabin Radio said in the complaint.
Cabin Radio has had some backing on its pursuit of the FM licence, including from members of the legislative assembly and the finance minister of the Northwest Territories, who said she would draft a letter in support of the station’s pursuit of the licence.
