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Broadcast codes - not film ratings - apply, says Commission; Langford dissents


OTTAWA - In declining to rule on an unusual appeal made by broadcaster TQS to the CRTC, commissioners made it known today that the ratings of provincial film boards should not be the determining factor when broadcasters rate the movies they choose to air.

TQS wanted to appeal to the Commission a December 2002 Canadian Broadcast Standards Council ruling which slapped the broadcaster's wrists over the airing of the Rene Russo-Pierce Brosnan movie "The Thomas Crown Affair", or in TQS's case, "L'Affaire Thomas Crown."

The movie began at 7 p.m. and featured some violence and nudity. It aired with the rating icon of 8+. A viewer disagreed and complained and on December 20, 2002, the Quebec Regional Panel of the CBSC found that TQS was in breach of Articles 4 and 5.2 of the Canadian Association of Broadcasters' Voluntary Code Regarding Violence in Television Programming (the Violence Code) for various classification issues and with respect to the broadcast of viewer advisories.

But, since broadcasters are not allowed to appeal CBSC decisions to the Commission - though viewers are - commissioners said they would not hear an appeal and would not analyze the decision.

However, they did look at the decision and clarified the role that provincial film ratings should play when broadcasters are deciding how to rate and when to air movies since the CBSC said in its decision that broadcasters should be able to rely on provincial boards such as Quebec's Régie du cinéma, except where the broadcaster has some serious misgivings about the rating. (In choosing 8+, TQS actually rated the movie more harshly than Régie du cinéma had for theatrical release.)

The CRTC release today says that broadcasters should not, in fact, rely solely on what provincial film board raters have to say about movies (pay and pay-per-view services can). Broadcasters can use the provincial theatrical release ratings as guidelines, or a starting point perhaps, but they must rate the content they show themselves, taking into account the movies are being broadcast on television and not in a theatre.

"Provincial ratings, including those of the Régie du cinéma, are assigned with a theatrical audience in mind, not a television audience. The difference is that when going to a theatre, viewers make a clear, conscious decision to see the chosen film. Television, on the other hand, is much more accessible, by its very nature, and there is a possibility of children tuning in to age-inappropriate programming by accident," it reads.

Later, "Thus, it is clear that the Commission never intended that conventional or specialty broadcasters would simply adopt the rating assigned to a film intended for theatrical release by the provincial ratings body. Rather, it is the responsibility of the broadcasters themselves to assign the most appropriate rating to their programming for their television audiences, using the system that applies to them.

"Specifically, French-language conventional and specialty broadcasters must rate their programming themselves using the tools of the Régie du cinéma classification system. They cannot simply rely on the Régie du cinéma rating for a film as being suitable for television broadcast," added the decision.

Commissioner Stuart Langford dissented with the majority, calling the decision and process "both wrong and confusing."

"On the one hand, the majority refuses to consider a request by TQS inc. (TQS) to review a decision by the Canadian Broadcasting Standards Council (CBSC). On the other, under the guise of clarifying the Commission's film classification policy, the majority appears to do precisely what it first declared that it would not do; that is, review the CBSC decision at issue," reads his dissent.

"There is something troubling about an adjudication system which treats one party to a two-party process differently than the other. Yet, such a system is precisely what today's majority decision establishes as regulatory policy. Complainants to the CBSC are privileged to enjoy as of right access to two levels of decision makers, respondents only one…

"People with grievances against broadcasters in Canada may seek adjudication by the CBSC. If they disagree with a CBSC ruling, they may seek a second and binding opinion from the Commission. Today's majority decision stands for the proposition that broadcasters who support the CBSC share no such right of due process. If such broadcasters do not agree with a CBSC decision, that, according to the majority, is too bad. They are stuck with it. The Commission will not hear them. Or will it?" it continues.

Calling its review a clarification, the majority weighed the merits of the CBSC decision and rejected all of TQS's claims for relief and supported the CBSC.

"The majority decision confronts broadcasters with an unpalatable choice: they may either support the CBSC thereby cutting themselves off from access to the Commission's review procedures, or they may assure themselves access to the Commission by withdrawing from the CBSC. Why any regulatory body would wish to force a group of stakeholders within its jurisdiction to make such a decision is difficult to imagine," said Langford.

"There appears to exist in the majority's mind an underlying assumption that access for respondents will almost invariably result in abuse of process or that regulatory review would be tantamount to negating the CBSC's usefulness: 'To allow broadcasters, as a matter of course, to also come to the Commission… would defeat this process.' The whole point behind creating the CBSC, in the majority's mind at least, appears to have been to give broadcasters who support it a method of avoiding adjudication by the Commission. I guess no one explained this to TQS. Certainly, it makes no sense to me."

"I disagree with the majority decision and would have allowed TQS to make its case to the Commission. As for the majority's clarification, I reserve comment. Decisions are one thing, gratuitous reflection quite something else. In my view it is not helpful to confuse the two," he concluded.

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