Hearing panel make-up “procedurally unfair”, VMS argues
CALGARY, EDMONTON and OTTAWA — VMS Media Group Ltd., whose applications to operate urban Indigenous radio stations in Edmonton and Calgary were previously denied by the CRTC in June, is petitioning the Governor-in-Council to set aside the decision or refer it back to the Commission for reconsideration.
In its Broadcasting Decision CRTC 2017-198, the CRTC approved the licence applications of three broadcasters to operate Type B Native FM radio stations serving urban Indigenous communities in Vancouver, Edmonton, Calgary, Ottawa and Toronto. In the same decision, the CRTC denied VMS Media Group’s applications to serve the Edmonton and Calgary markets, as well as other broadcasters’ licence proposals for the five radio markets considered. (One of those denied applicants, Wawatay Native Communications Society, has previously asked that the CRTC’s decision denying Wawatay’s applications to operate urban Indigenous radio stations in Ottawa and Toronto be overturned.)
Key to VMS Media Group’s petition to have the CRTC’s decision set aside or reconsidered is its assertion that the participation of Linda Vennard, one of the CRTC commissioners on the radio hearing panel in March 2017, was procedurally unfair to VMS because Vennard was previously found to be in conflict of interest with respect to an existing commercial radio operator in Calgary. As CRTC Commissioner for Alberta and the Northwest Territories, Vennard was one of three panellists (along with then-chairman Jean-Pierre Blais and CRTC Commissioner for Atlantic Canada and Nunavut Christopher MacDonald) who participated in the Commission’s hearing into new urban Indigenous radio stations, which Cartt.ca covered here, here and here.
In its petition, submitted to the Governor-in-Council on July 28 and forwarded to Cartt.ca by VMS Media Group president Ranjit Sidhu on August 8, VMS states:
“The CRTC’s decision should be set aside and/or referred back to the CRTC for reconsideration for the following reasons:
- Ms. Vennard’s participation on the panel following the Conflict of Interest and Ethics Commissioner’s finding of a conflict of interest in relation to RED FM was procedurally unfair to VMS; and
- The Commission’s decision does not meaningfully contribute to a diversity of news voices in Calgary or Edmonton and ignored the support of Indigenous communities.”
In September 2016, Mary Dawson, Conflict of Interest and Ethics Commissioner, ruled that Vennard had contravened section 11 of the Conflict of Interest Act by accepting gifts (a bouquet of flowers and a box of chocolates on the occasion of her birthday) from a CRTC stakeholder, RED FM, an ethnic radio station owned and operated in Calgary by South Asian Broadcasting Corporation. RED FM is the brand identity for two radio stations — CKYR-FM in Calgary and CKYE-FM in Vancouver.
In her ruling, the ethics commissioner said: “I therefore conclude that these gifts ‘might reasonably be seen to have been given to influence’ Dr. Vennard in the exercise of an official power, duty or function and that she should not have accepted them.”
VMS Media Group, in its original applications for Indigenous radio licences in Calgary and Edmonton, had proposed to operate commercial FM stations that would broadcast both Indigenous and ethnic programming. In the case of both licence applications, VMS said its proposed stations would broadcast at least 50% Aboriginal programming (in Cree, Blackfoot, Ojibwe and Michif languages), up to 40% ethnic programming and up to 10% cross-cultural programming.
In the CRTC’s decision, included in its analysis of whether or not a new urban Indigenous radio station could be supported in the five cities being considered, the Commission also analyzed the ethnic radio markets in Calgary and Edmonton, and found they could not support an additional ethnic radio station in those cities.
With respect to the Calgary radio market specifically, the CRTC wrote in its decision:
“The application by VMS for Calgary is innovative in terms of its proposed mix of Indigenous, ethnic and cross-cultural programming offering. However, the ethnic programming to be broadcast by VMS’s proposed station would overlap programming targeting the South Asian community that is currently broadcast by the incumbent radio stations CHKF-FM and CKYR-FM. As a result, VMS’s proposal would not add to the diversity of South Asian programming currently available in the market. Finally, VMS’s projected revenues that are tied to ethnic programming represent over 30% of Calgary’s 2015 ethnic radio revenues. In light of the above, approval of VMS’s application could have an undue negative financial impact on the Calgary ethnic radio market and its incumbent ethnic radio stations.”
The CRTC expressed similar concerns about the Edmonton radio market, stating that approval of VMS’s application could have an undue negative financial impact on the Edmonton ethnic radio market, as VMS’s proposed station would overlap programming targeting the South Asian community currently broadcast by incumbent radio station CKER-FM (owned by Rogers Broadcasting) and expected to be broadcast by a yet-to-be-launched ethnic AM radio station licensed to 1811258 Alberta Ltd.
In its petition to the Governor-in-Council, VMS highlighted that the CRTC’s decision specifically denied VMS’s application in Calgary due to the potential negative impact on incumbent ethnic radio station CKYR-FM (RED FM). Furthermore, VMS questioned the inclusion of Vennard on the CRTC’s radio hearing panel, given the ethics commissioner’s conflict of interest ruling against Vennard six months earlier.
“It was, and is, procedurally unfair, and presented a reasonable apprehension of bias, for the CRTC to have placed on the panel for a hearing a Commissioner who had previously been found to have been in a position of conflict of interest in relation to an entity whose commercial interests were at issue at the hearing,” VMS stated in its petition. “Given the Conflict of Interest and Ethics Commissioner’s finding, Ms. Vennard should never have been placed in a position of ruling on a matter that directly turned on RED FM’s interests so soon after Ms. Dawson’s decision.”
VMS went on to say the appropriate response from the CRTC would have been to “establish an appropriate cooling off period” for contact between Vennard and RED FM, and to have Vennard recuse herself from any decision impacting RED FM for an appropriate period, such as one year, and for the CRTC to refrain from placing Vennard on any decision-making panel that could specifically impact RED FM in the markets in which it operates.
“Instead, Ms. Vennard was placed on the aboriginal hearing panel that denied VMS’s applications, at least in part, due to the potential impact of VMS’s new station on RED FM. This was an error in law and a procedural defect that must be remedied by the Governor in Council,” VMS stated in its petition.
With regard to the other objection stated in its petition, VMS said the CRTC’s decision is flawed and a departure from the Commission’s policy priorities, because it does not contribute to a diversity of voices, did not select the most innovative applications and ignored the applicants most supported by Indigenous communities.
Referring to one of the successful applicants awarded an Indigenous radio licence in Edmonton, Aboriginal Multi-Media Society of Alberta (AMMSA), VMS Media Group pointed out that AMMSA already operates a radio station in Edmonton (CFWE FM). With two radio stations in Edmonton and a third in Fort McMurray, AMMSA becomes the dominant aboriginal radio operator in northern Alberta, VMS argued in its petition.
“The awarding of radio licence(s) to VMS to serve either (or both) of Calgary or Edmonton would have introduced a new voice to Indigenous broadcasting in Alberta and provided meaningful competition for the first time,” VMS wrote in its petition.
Furthermore, in terms of programming diversity, AMMSA’s proposed schedule consists primarily of music programming, that is readily accessible in the online space, and includes only 4.46 hours of weekly news, according to VMS.
“By contrast, VMS’s proposed services, in accordance with the need identified by the CRTC, were heavily news and information programming-focused. VMS offered a minimum of fourteen (14) hours weekly of news programming on each of its Edmonton and Calgary stations, over three times as much offered by AMMSA. In addition, a minimum of fifty (50) hours weekly would have consisted of spoken word programming on each station,” VMS wrote.
“It is difficult to fathom how services that offered significantly less news programming to urban aboriginals living in Calgary and Edmonton could be awarded a licence over the services proposed by VMS, which were primarily news and information-focused, particularly in light of the policy priority articulated by the CRTC. Particularly in Edmonton, given its existing footprint as well as its primarily music-based focus, AMMSA’s licensing does not advance a diversity of ownership or content in Indigenous broadcasting in Alberta,” VMS argued.
In addition, VMS said it received greater support than AMMSA in terms of Indigenous communities and local leaders. In the case of AMMSA, during the CRTC’s radio hearing, it received 41 interventions, of which only two were representative of any aboriginal or Indigenous group or nation, VMS said. In contrast, VMS received 79 interventions, including supporting interventions from five Indigenous groups and several Members of Parliament, including three MPs in Edmonton and one in Calgary, VMS said.
Based on its objections to Commissioner Vennard’s participation on the CRTC’s radio hearing panel and to the CRTC’s flawed decision in “the awarding of licences to broadcasters who offered less news and information programming than other applicants as well as receiving fewer supporting interventions”, VMS Media Group is asking that the CRTC’s decision be set aside or referred back to the CRTC for reconsideration, VMS concluded.
