FEDERAL GENERAL ELECTION MAY 2, 2011
The Broadcasting Arbitrator
ISSUED MARCH 28, 2011
Toronto-Dominion Bank Tower
The following guidelines have been issued in conformity with section 346 of the Canada Elections Act, S.C. 2000, c. 9.
These guidelines are intended to clarify the responsibilities of broadcasters in allocating time to federal political parties for partisan political broadcasts during the current federal general election.
A copy of these guidelines can be found on the Elections Canada Web site at www.elections.ca.
These guidelines deal only in passing with broadcasting time made available to candidates and with other kinds of political broadcasting. Those matters generally fall within the authority of the Canadian Radio- television and Telecommunications Commission (CRTC), as are questions about the political broadcasting requirements of the Broadcasting Act and regulations. A copy of the CRTC guidelines regarding the federal election can be found on the CRTC's Web site at www.crtc.gc.ca.
The Broadcasting Arbitrator is Mr. Peter S. Grant. He can be reached by telephone, cellphone or fax at the numbers listed above or by e-mail at firstname.lastname@example.org.
Allocation of and Entitlement to Broadcasting Time
Question 1. What is the obligation of broadcasters with regard to offering time for sale to political parties?
Answer: Sections 335, 339 and 343 of the Canada Elections Act, taken in combination, require that each broadcaster must make available, for purchase by registered and new political parties, 390 minutes of broadcasting time, during prime time, in the period beginning with the issuance of the writs and ending at midnight on the day before election day.
The period within which political parties have a right to purchase such time, therefore, ends at midnight on Sunday, May 1, 2011. If the broadcaster is affiliated with a network, the 390-minute obligation is shared in accordance with the agreement between the broadcaster and its network.
Question 2. Does this obligation apply to specialty programming services as well as to radio and television stations? What about pay television services?
Answer: This obligation applies not only to AM and FM radio stations and to television stations, but also to specialty television services licensed by the CRTC and carried by cable, satellite and MDS systems. However,the obligation does not apply to pay television services, since they are prohibited from carrying advertising material by paragraph 3(2)(d) of the Pay Television Regulations, 1990.
Question 3. Does this obligation apply to new media broadcasting services offered through mobile devices or through the Internet?
Answer: No. The term “broadcaster” is defined in the Canada Elections Act to mean “a person who is licensed by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act to carry on a programming undertaking.” The CRTC has exempted mobile television undertakings and new media broadcasting undertakings from the requirement to obtain a licence. Hence these undertakings are not obliged to make time available for purchase by political parties although they are free to do so.
Question 4. Does this obligation apply to the community channels offered by cable television systems?
Answer: No. The obligation applies only to programming undertakings, not to distribution undertakings, which include cable television systems.
Question 5. What is “prime time” for the purposes of the
Answer: “Prime time” is defined in section 319 of the Act as:
Radio: 6:00 a.m. to 9:00 a.m.
Noon to 2:00 p.m.
4:00 p.m. to 7:00 p.m.
Television: 6:00 p.m. to midnight
Question 6. What rules apply to a broadcaster that serves more than one time zone?
Answer: Almost all of the specialty television services and some of the conventional radio and television networks serve more than one time zone. In such cases, prime time should be interpreted as extending from 6:00 p.m. (local time) in the easternmost locality served to midnight (local time) in the westernmost locality served.
Question 7. How are the 390 minutes allocated among the parties?
Answer: By virtue of the order issued by the Broadcasting Arbitrator on February 17, 2011, and by virtue of section 339 of the Act, the 390 minutes have been allocated as follows:
|Conservative Party of Canada||103:00|
|Liberal Party of Canada||69:30|
|New Democratic Party||48:00|
|Green Party of Canada||23:30|
|Christian Heritage Party of Canada||9:30|
|Marxist-Leninist Party of Canada||9:30|
|Communist Party of Canada||8:30|
|Libertarian Party of Canada||8:30|
|Canadian Action Party||8:00|
|Animal Alliance Environment Voters Party of Canada||7:30|
|First Peoples National Party of Canada||7:30|
|People's Political Power Party of Canada||7:30|
|Progressive Canadian Party||7:30|
|Western Block Party||7:30|
|Pirate Party of Canada||6:30|
|United Party of Canada||6:30|
Question 8. Can a party lose its allocation?
Answer: Yes. If a party listed above does not have an endorsed candidate in at least one electoral district listed on the list of confirmed candidates published on April 13, 2011, the time allocated to that party will lapse on that date and will not be reallocated.
Question 9. Are there any limits on how much a broadcaster can charge a party or a candidate for the purchase of time?
Answer: Yes. By virtue of paragraph 348(a) of the Canada Elections Act, the rates a broadcaster may charge a political party, a candidate or any person acting on their behalf must not exceed the lowest rates charged for equal amounts of equivalent time made available to any other persons at any time within the same advertising period.
Question 10. What happens if a party wants to buy time in a particular program, but the broadcaster says that it is already sold out in that time period?
Answer: Provided the party has followed the notice requirements set out below, the broadcaster may be forced to pre-empt other advertisers to accommodate the party's needs.
Question 11. What happens if a party wants to buy time from a station or network that is in excess of its entitlement, as listed above?
Answer: The above allocation of time does not operate as a “cap” on the time that a party can purchase. In fact, there are a number of situations in which a broadcaster may choose to sell time to a party that would be outside the allocation entitlement. For example:
- the broadcaster can choose to sell time over and above a party's entitlement;
- the broadcaster can choose to sell time to a party in the first week of the election before the end of the five-day notice period that applies to the purchase of allocated time (see Question 19);
- the broadcaster can choose to sell time to a party outside prime time (see Question 5).
In each of these cases, the time falls outside the allocation entitlement, and it is at the discretion of the broadcaster whether to sell such time to the party. If sold to the party, such time does not count against a party's allocation entitlement, and a party is free to buy such time provided it stays within its overall election spending limits.
Question 12. Can a broadcaster sell extra time to one party but refuse to sell it to another?
Answer: No. In the situations listed above, it is at the discretion of the broadcaster whether to sell such time to a party. However, it cannot sell extra time to one party and refuse to sell it to other parties, if asked. In this case, the requirement in the broadcasting regulations that broadcasters allocate time to the parties “on an equitable basis” applies, and a broadcaster cannot discriminate in favour of one party over another.
Question 13. Does the allocation above apply to time purchased by individual candidates or groups of candidates?
Answer: No. The 390 minutes allocated under the Act apply to political parties only. Time purchased by a candidate for his or her own use is not affected by Parts 1, 2 or 3 of these guidelines, and does not form part of the allocated time.
Question 14. Can a political party purchase time on an American radio or television station?
Answer: No. Section 330 of the Canada Elections Act prohibits placing political ads on any broadcasting station outside Canada.
Procedure for Booking Broadcasting Time
Question 15. Who can purchase broadcast time for political parties?
Answer: The allocated broadcasting time may only be purchased by the parties listed below, and only through their chief agent or other persons whom they have designated and whose names they have given to Elections Canada.
Question 16. Who are the parties' authorized agents?
Answer: The parties' chief agents, or their authorized agents for the purchase of broadcasting time, as given to Elections Canada, are listed in the following table:
|Conservative Party of Canada||PHD
|Helena Shelton||96 Spadina Ave., 6th floor
|Liberal Party of Canada||M2 Universal||Sara Hill
|10 Bay St.
|New Democratic Party||Wills & Co. Media Strategies Inc.||Jeff Wills||56 The Esplanade,Suite 216
|Bloc Québécois||Janine Boileau
|3730, boul. Crémazie Est,
|Green Party of Canada||Integrated Media Solutions Inc.||Ugis J. Zvilna Anne
|703 Evans Ave.
Suite 500 Toronto, ON
|Marxist-Leninist Party of Canada||Anna Di Carlo||1867, rue Amherst
|Christian Heritage Party of Canada||Vicki Gunn||6 Morton Ave
|Canadian Action Party||Tim McCormick
|5346 Hwy 1 St.
|Progressive Canadian Party||Macdonald- Cartier
PC Fund c/o Mr. Don Cox
730 Davis Drive
|Marijuana Party||John Akpata||550 Gilmour St.
|Communist Party of Canada||Liz Rowley||290A Danforth Ave.
|Libertarian Party||Brisson||2052 Ste Marie
|First Peoples National Party of Canada||Barbara Wardlaw||74 Panoramic Dr.
Sault Ste. Marie, ON
|Western Block Party||Keltie Zubko||810 Courtney Street
|Animal Alliance Environment
Voters Party of Canada
|Stephen Best||1907 Swan Street
|2705, rue Laurier Est
Power Party of Canada
|Laurel McCallum||107 Marion Street
|Pirate Party of Canada||Pirate Party of Canada Fund
c/o Stephane Bakhos
|United Party of Canada||John C. Hastings||P.O. Box 83
Question 17. What is the deadline for the parties to give notice to broadcasters of their purchase preferences?
Answer: No later than ten days after the issue of the writs, i.e. no later than April 5, 2011, and subject to the five-day rule described in the response to Question 19, each political party must submit a notice in writing to each broadcaster and each network from which it intends to purchase time. The notice sets out the proportion of commercial time and program time the party prefers as well as the days and hours when that time, so proportioned, is to be made available.
Question 18. What is meant by “commercial time” and “program time”?
Answer: Subsection 344(1) of the Canada Elections Act defines “commercial time” as periods of two minutes or less during which a broadcaster normally presents commercial messages, public service announcements, or station or network identification. The same subsection defines “program time” as periods longer than two minutes during which the above types of messages are not normally presented.
The distinction between commercial time and program time arose in the past because the CRTC considered political messages of two minutes or less to count as commercials for the purpose of its limitation of commercial time on radio and television stations. Messages longer than two minutes did not count as commercials.
However, in 1993, the CRTC removed the limitation on commercials per week on radio stations. In addition, in 1995, the CRTC amended its TelevisionBroadcastingRegulationsto place “partisan political advertising” of any length outside the normal 12-minute-per-hour limitation on advertising material that applies to conventional television stations. The same policy applies to specialty programming services that have conditions on their licences in this respect. In 2009, the CRTC removed all restrictions on advertising time limits for conventional television broadcasters. Thus, the distinction between commercial time and program time is no longer relevant for CRTC purposes.
Question 19. What is the five-day rule, and how does it apply?
Answer: Under subsection 344(2) of the Canada Elections Act, a party cannot obtain the broadcasting time that is allocated to it “before the fifth day after the notice is received by the broadcaster or network operator.” This means that if a party wants to purchase broadcast time for Thursday, March 31, 2011, as a matter of entitlement, it must ensure that the station or network receives its notice at least five days before that date, i.e. on Saturday, March 26, 2011, the date on which the writs were issued.
Thus, even if a party sends its notice to broadcasters within ten days of the issue of the writs, as required by subsection 344(2), it will have lost its entitlement to purchase time in the period up to April 10, 2011, unless its notice to the broadcaster was received by that broadcaster at least five days in advance of the dates for which the time was requested.
These notice provisions apply only to the party's entitlementto allocated time. A party can always buy time without regard to these notice periods (e.g. before the end of the five-day notice period) if the broadcaster agrees, as discussed above in Question 11. However, the sale of such broadcasting time cannot be compelled.
Question 20. Can a party send more than one notice to a broadcaster, stating its time preference?
Answer: The best approach is to send a single notice to the broadcaster that indicates all the party's time preferences for the entire election campaign. However, if the party seeks advertising time at the beginning of the campaign, the only way to observe the five-day rule is to ensure that the broadcaster receives the notice five days before the date requested for the broadcast of the first ad.
That being said, the Canada Elections Act does not preclude a party from sending two or more notices. For example, a party might proceed as follows:
- the party could send a notice to be received on March 28, 2011, i.e. within two days of the date the writs were issued, seeking to purchase time in the period from April 2 to April 9, 2011; the notice would fully comply with the five- day rule for this time;
- the party could then send a second notice in which it indicated its time preferences for the period from April 10 to May 1, 2011. As long as that second notice was sent on or before April 5, 2011, and received by the broadcasters no later than five days before the date of the contemplated broadcast, the party would be in compliance with the Act.
- envoyer ensuite un deuxième avis, dans lequel ses préférences sont indiquées pour la période du 10 avril au 1er mai 2011. Du moment que cet avis est envoyé au plus tard le 5 avril 2011 et qu'il est reçu par le radiodiffuseur au plus tard cinq jours avant la date à laquelle le parti aimerait diffuser son premier message, les dispositions de la Loi seraient respectées.
Question 21. What does a broadcaster do when it receives a notice from a party, stating its time preferences?
Answer: Every broadcaster or network operator must, within two days of receiving such a notice, consult with representatives of that party to reach an agreement on its requests. As noted earlier, to satisfy the requirements of the political parties, the broadcaster may have to pre-empt other advertisers.
A network-affiliated station should be prepared to accommodate an initial request from a party for an amount of station- controlled time that, together with the time requested from the network, exceeds that party's total allocation on the station. This is to ensure that the party can ultimately achieve its total allocation on the station if the network cannot fully accommodate its requirements.
Question 22. What happens if there is no agreement?
Answer: If no agreement can be reached within two days, the matter is referred to the Broadcasting Arbitrator, who must decide on the requests immediately and notify the parties and the broadcaster. By virtue of subsection 344(6) of the Act, the decision of the Broadcasting Arbitrator is final and binding on the party and the broadcaster.
Question 23. WhatdoestheBroadcastingArbitratortake into consideration when making his decision?
Answer: In making his decision, the Broadcasting Arbitrator must take into account the following principles set out in subsection 344(5) of the Act:
- that each … party should have the freedom and flexibility to determine the proportion of commercial time and program time to be made available to it and the days on which and the hours during which that time as so proportioned should be made available; and
- that any broadcasting time to be made available to a … party should be made available fairly throughout prime time.
Question 24. How is the time actually booked?
Answer: Once the broadcasting time periods to be made available to the political parties have been established, normal commercial practices, including five days' notice, should apply to the actual booking of time within those time periods. When networks are involved, network time should be booked first, and as early as possible, so that stations affiliated with networks can then more effectively respond to requests for the remaining amounts of station time.
When purchasing time for the second week of the election period, the timelines described above must be abbreviated. If possible, when parties send their notices of time preferences, they should indicate that they wish to book time in that week. This will give as much notice to the broadcaster as possible.
Question 25. Howlongshouldbroadcastershold time open for booking?
Answer: Network and station operators should hold available time periods open for booking by the political parties up to April 26, 2011. After this date, they may substitute other equivalent broadcasting periods for those originally established.
Network Free Time
Question 26. Do broadcasters have an obligation to provide free time to the political parties?
Answer: Yes, but this obligation applies only to certain networks, not to all broadcasters. This is in addition to purchasable time.
Question 27. Which networks are required to provide free time?
Answer: Under section 345 of the Act, the following radio and television networks are required to allocate the following free time periods:
|CBC Radio One||120|
|SRC Première Chaîne||120|
|CBC TV (English)||214|
Question 28. How is the network free time allocated?
Answer: The network free time is allocated among political parties proportionally to their paid time allocation as follows:
|CBC-TV||CBC Radio One||TVA|
|Conservative Party of Canada||56:30||32:00||16:30|
|Liberal Party of Canada||38:00||21:30||11:00|
|New Democratic Party||26:00||15:00||8:00|
|Green Party of Canada||13:00||7:30||4:00|
|Marxist-Leninist Party of Canada||5:30||3:00||1:30|
|Christian Heritage Party of Canada||5:30||3:00||1:30|
|Libertarian Party of Canada||5:00||3:00||1:30|
|Communist Party of Canada||5:00||3:00||1:30|
|Canadian Action Party||4:30||2:30||1:30|
|Animal Alliance Environment Voters Party of Canada||4:00||2:00||1:00|
|First Peoples National Party of Canada||4:00||2:00||1:00|
|People's Political Power Party of Canada||4:00||2:00||1:00|
|Progressive Canadian Party||4:00||2:00||1:00|
|Western Block Party||4:00||2:00||1:00|
|Pirate Party of Canada||3:30||2:00||1:00|
|United Party of Canada||3:30||2:00||1:00|
Question 29. How is the free time to be made available?
Answer: The above time must be made available, at no cost to the political parties, to broadcast political announcements and other programming produced by them or on their behalf. The scheduling of free-time programming will likely vary from one network to another. There is no requirement that the free time be made available during prime time.
Question 30. Can the free-time entitlement be lost?
Answer: Yes. If any of the parties listed above fails to nominate at least one candidate by the close of nominations on April 11, 2011, their free-time allocation lapses and will not be reallocated. Similarly, if all of the party's candidates fail to be confirmed and do not appear on the list of confirmed candidates published on April 13, 2011, thus placing the party below the candidate threshold, their free-time allocation lapses on that date and will not be reallocated.
Content and Identification of Paid and Free-Time Messages
Question 31. On what grounds can a broadcaster decline to carry a paid or free- time political message submitted by a party?
Answer: The paid and free-time obligations of broadcasters and network operators are subject to the applicable regulations under the Broadcasting Act and to the conditions of the broadcasters’ licences. This means that a broadcaster is entitled to refuse to broadcast a paid or free-time political message provided by a political party if:
- the announcement is not in the language for which that broadcaster was licensed;
- the announcement contains any obscene or profane language or pictorial representation;
- the announcement contains any abusive comment or abusive pictorial representation that when taken in context, tends to or is likely to expose an individual, or a group or class of individuals, to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age, or mental or physical disability, or
- the broadcast of the announcement would otherwise be in contravention of the law.
Question 32. How much time should a broadcaster be given to review the political message?
Answer: The actual ad should be sent to the broadcaster for review as soon as possible, but certainly no less than 48 hours before the time of the scheduled broadcast.
Question 33. Can a broadcaster “censor” a political ad?
Answer: Unless the political ad contravenes the regulations or the licence conditions, as noted above, a broadcaster is not entitled to censor the ad.
Question 34. Do political messages have to identify the party that placed the message?
Answer: Yes. Under section 320 of the Canada Elections Act, both paid and free- time messages must contain a clear identification of the party and a statement that the registered agent of the party authorized the message.
The party's identification may be an audio and/or visual identifier at the beginning or end of the message. This could include a party logo that has been registered with the Chief Electoral Officer under paragraph 368(a) of the Act or is being used consistently by the party. In the case of a television message, the logo or other identifier should be displayed in a clearly visible or legible manner for at least three seconds, either at the beginning or the end of the message.
Question 35. Is there a blackout period during which no political advertising is permitted to be aired?
Answer: Yes. By virtue of section 323 of the Canada Elections Act, election advertising cannot be aired after midnight on Sunday, May 1, 2011. This means that no political advertising can be broadcast Monday, May 2, 2011, election day.
Question 36.Does the blackout period apply to messages posted on the Internet before polling day and that are still on a Web site on polling day?
Answer: No. Section 324 of the Canada Elections Act provides that the blackout provisions do not apply to messages that were transmitted on the Internet before the blackout period and were not changed during the blackout period.
Question 37. When can election results first be reported?
Answer: Under section 329 of the Canada Elections Act, no person may transmit the result or purported result of the polling in any electoral district of Canada to the public in another electoral district before the hour fixed for the closing of the polls in that other electoral district.
It should be noted that this prohibition applies not only to radio and television stations and networks, and to specialty programming services, but also to broadcasting distribution undertakings (BDUs), including cable television systems, direct-to-home satellite services and multipoint distribution systems. Paragraph 7(b) of the Broadcasting Distribution Regulations specifically authorizes a BDU to alter or delete a programming service in the course of its distribution for the purpose of complying with this section of the Canada Elections
Question 38. At what time do local polls close?
Answer: The hours of polling for each electoral district vary depending on the time zone in which the electoral district is located.
Newfoundland, Atlantic, Central Time (other than Saskatchewan)
8:30 a.m. to 8:30 p.m.
9:30 a.m. to 9:30 p.m.
7:30 a.m. to 7:30 p.m.
7:30 a.m. to 7:30 p.m.
7:00 a.m. to 7:00 p.m.
Question 39. Are there any restrictions on the broadcasting of opinion surveys during the election period?
Answer: Yes. Under section 326 of the Canada Elections Act, the first person who transmits the results of an election survey – other than a survey that is not based on recognized statistical methods – to the public during an election period, and any person who transmits them within 24 hours after they are first transmitted to the public, must also provide certain information about the survey.
In particular, if that person is a broadcaster, the following information must be provided:
a) the name of the sponsor of the survey; b) the name of the person or organization that conducted the survey; c) the date on which or the period during which the survey was conducted; d) the population from which the sample of respondents was drawn; e) the number of people who were contacted to participate in the survey; and f) if applicable, the margin of error for the data.
If the person publishing the opinion survey is not a broadcaster, that person must also provide certain additional information, namely, the wording of the survey questions and the means by which a report on the survey may be obtained. Section 326 of the Act also requires the sponsor of an election survey, the results of which are transmitted to the public, to provide a copy of a written report on the results of the survey to anyone on request. Any fee must not exceed $0.25 a page.
If the survey is not based on recognized statistical methods, the above guideline does not apply. Instead, the first person who transmits the results to the public during an election period, and any person who transmits them within 24 hours after they are first transmitted to the public, must indicate that the survey was not based on recognized statistical methods.
Question 40. What is the situation when the media receives election survey results without any knowledge of the methodology used?
The Act does not specifically address this situation. However, it would be in keeping with the objectives of the statute that if the media chooses to report the results, it should indicate that it does not know the methodology used for the survey.
Question 41. Are there any restrictions on the broadcasting of opinion surveys on election day?
Answer: Yes. Subsection 328(2) of the Act states, “No person shall transmit to the public, in an electoral district on polling day before the close of all of the polling stations in that electoral district, the results of an election survey that have not previously been transmitted to the public”.
Question 42. Are there any restrictions on advertising placed by persons other than candidates or political parties?
Answer: Yes. Sections 349 to 362 of the Canada Elections Act govern third-party advertising. Any third party that spends $500 or more on election advertising is required to register with Elections Canada and disclose its contributors. Third parties are prohibited from spending more than $150,000 on election advertising during an election period, with a maximum of $3,000 to be spent in a given electoral district.
Broadcasters are free to accept and run third- party advertising during an election. They have no obligation to do so, but if they choose to, they should ensure that such ads identify the third party. Section 352 of the Canada Elections Act states, “A third party shall identify itself in any election advertising placed by it and indicate that it has authorized the advertising.”
Toronto, March 28, 2011
Original signed by
Peter S. Grant
The Broadcasting Arbitrator