Modernizing the Electoral Process – Recommendations from the Chief Electoral Officer of Canada following the 37th general election
Part 4: Ensuring Fair Competition – Broadcasting
The communication of ideas is vital to the electoral process; and broadcasting has proven to be one of the most powerful and effective tools for the communication of ideas. It is also a very expensive and limited resource. As noted by the Royal Commission on Electoral Reform and Party Financing (the Lortie Commission) in its 1992 report, Reforming Electoral Democracy, "fairness in electoral competition requires that the contenders be given reasonable access to those media channels that are likely to be most effective in carrying their arguments to voters". Equally, the public has a right to be informed in a "fair and objective way".54
The recommendations in this Part are aimed at the creation of an efficient legislated broadcasting regime that recognizes radio and television broadcasting as an important means of communication during an election; that recognizes that broadcasting resources are not unlimited or without cost; that allows the electorate adequate access to the views of parties that have demonstrated their reflection of the public's aspirations and beliefs, as well as to new or emerging views; that recognizes the importance of parties being able to determine when and how they wish to communicate their views to the electorate; and that ensures adequate and real access to broadcasting time by the parties.
The importance of broadcasting is recognized in the Canada Elections Act by its provision of a specific regulatory scheme within the statute. That scheme is administered by the Broadcasting Arbitrator. (Communications are also regulated by the CRTC under the Broadcasting Act.) The communications scheme under the Canada Elections Act aims to ensure adequate broadcasting access for political views during an election. It does this in two ways. In order to ensure that prime broadcasting time cannot be monopolized, it requires that prime time be available for purchase by all parties. Secondly, to ensure that the communication of ideas is not totally dependent on financial resources, the Act provides for a specified amount of free broadcasting time for all registered parties (and to a limited extent to eligible parties).
There is no legal limitation on the amount of prime time broadcasting that a registered or eligible party may purchase under the existing provisions of the Act, other than for the general spending limits imposed by the Act. However, in recognition of the limited amount of prime time broadcasting actually available for purchase, the Act sets out a scheme whereby a basic amount of prime time (390 minutes) must be made available for purchase by registered parties. That available prime time is apportioned among the various registered parties according to a specified formula. Parties are free to purchase more prime time above this guaranteed amount, provided that the broadcaster is prepared to sell such time to the party.
As eligible parties are not entitled to a portion of this 390 minute pool of paid time, the Act provides that those eligible parties are entitled to purchase, from a total pool of 39 minutes, the lesser of the smallest apportionment of time allocated to a registered party, or 6 minutes. This time is not counted in the initial computation of the 390 minute pool.
The statutorily mandated apportionment of the 390 minutes of base amount of prime time available for purchase is based on factors that give equal weight to the percentage of seats in the House of Commons and the percentage of the popular vote obtained by each of the registered parties in the previous general election, and half weight to the number of candidates endorsed by each of the registered parties as a proportion of all candidates endorsed. The Broadcasting Arbitrator has the discretion to modify this apportionment where he or she considers that an allocation made in accordance with that calculation would be unfair to a registered party or to the public interest.
The Act also provides for disputes over the purchase of actual time, under this allocation, to be arbitrated by the Broadcasting Arbitrator.
It should be noted that the allocation of paid broadcasting time does not necessarily result in the actual utilization of the resources available. For example, in the 1995 decision of the Alberta Court of Appeal in Reform Party of Canada v. Canada (Attorney General) (1995), 123 D.L.R. (4th) 366 (Alta. C.A.), the Court noted that, at that time, while the full allotment of time was purchased on a limited number of radio stations, no political party had purchased all of its allotment of broadcasting time on any television station. In fact, the experience of the last few elections, as related by the Broadcasting Arbitrator, is that smaller parties rarely utilize any of the paid time apportioned to them because they are unable to afford to buy it. Even the larger parties rarely, if ever, utilize their full allocation on any station, and all of them purchase time only on a select number of networks or stations.
In order to ensure that broadcasting is not totally dependent on financial resources, the Act also requires the provision by certain networks of minimum free broadcasting time to parties that is no less than the amount of free broadcasting time made available at the last general election. This pool of free time is apportioned among the parties as follows. Two minutes is first apportioned to every registered party and to every eligible party which has elected not to take part in the paid time apportionment. That time is deducted from the pool. The remainder is then apportioned between the other registered and eligible parties in the same proportion that the paid time apportioned to them bears to the overall paid time available for apportionment (390 + 39 minutes).
The apportionment of paid and free broadcasting time to eligible parties is carried out only to address the situation where the eligible party achieves registered party status during a general election. An eligible party which does not achieve registered status loses its eligible status and with the accompanying broadcasting time otherwise apportioned to it.
While the existing system is laudable in its goals, it is not wholly effective or efficient in its accomplishment. A number of concerns have been identified. The current statutory apportionment of paid time unduly fetters the ability of emerging parties to purchase enough time to make a meaningful case to the Canadian public. In an attempt to offset the adverse discriminatory effects of the existing formula, the Broadcasting Arbitrator, since 1992, has exercised his discretionary authority under the Act to modify the statutory apportionment formula, by apportioning one-third of the base time equally among all parties.55
In addition, the current reliance of the free time broadcasting regime upon the paid time regime introduces a substantial degree of artificiality into the system because parties are required to participate in the apportionment of paid time (which they may never use) in order to secure their free time allocation.
Furthermore, the current requirement that free time need only be provided by "networks" makes that regime dependent upon an organizational arrangement of diminishing national importance.56
While many radio stations and most television stations in Quebec are part of a network, most of the radio and television stations in English Canada are not part of a network. Only CBC and CTV television stations currently so qualify.
Under the current free time regime, networks are entitled to provide the required free time at whatever time the network feels is appropriate, and to package time in broadcasts of specific lengths, as they see fit. The Broadcasting Arbitrator has noted that free time is usually given out in five or ten minute blocks and that it is typically packaged with other free-time blocks.
Lastly, although the Act purports to give political parties the benefit of the lowest applicable rates for paid time, the Broadcasting Arbitrator believes that the provision is badly worded and does not achieve this purpose. The Arbitrator is of the view that the provision does not give candidates and parties access to the same rates that are given the station's most favoured commercial advertisers, and that it allows stations to charge much higher rates for political broadcasts.57
Ultimately, one wants an efficient legislated system that recognizes radio and television broadcasting as an important means of communication during an election; that recognizes that broadcasting resources are not unlimited or without cost; that allows the electorate adequate access to the views of parties that have demonstrated their reflection of the public's aspirations and beliefs, as well as to new or emerging views; that recognizes the importance of parties being able to determine when and how they wish to communicate their views to the electorate; and that ensures adequate and real access to broadcasting time by the parties.
4.1.1 Sever Free and Paid Time Regimes
To this end, the existing inter-relationship between paid time and free time should be severed and each should be made operationally independent. This will remove the need for registered parties that have no intention or ability to buy paid time to participate in a paid time apportionment exercise. In the following recommendations, all suggestions respecting particular amounts of time are based on suggestions submitted by the Broadcasting Arbitrator.58
Recommendation: A party's entitlement to free broadcasting time should not be dependent upon that party's entitlement to paid broadcasting time.
4.1.2 Broadcasting Rights Restricted to Registered Parties
Insofar as broadcasting time is a finite resource, the statutory rights to the provision of free time, should be restricted to registered parties. Eligible parties would be entitled to be treated as registered parties up to nomination day, at which point they must become a registered party. A party that failed to achieve registered status would forfeit the broadcasting rights apportioned up to that point. Eligible parties would, in any event, be able to purchase paid time at lowest unit rates, if a station were prepared to sell it at that rate subject to the parties' election expense limits.
Recommendation: Only registered parties should have the right to free broadcasting time.
4.1.3 Free Time Regime
To offset the declining importance of networks in the Canadian broadcasting system, the Act should be amended to provide for free time provision by all conventional television stations (not just networks) that broadcast news or public affairs program, all news/talk radio stations, and all specialty television services that focus on news or public affairs. This time would be apportioned equally between all registered parties that request such time. For this purpose, eligible parties would be treated as registered parties unless they fail to achieve registered status by the deadline.
While imposing the requirement to provide free time upon all stations and services has the advantage of simplicity, the Broadcasting Arbitrator has suggested that an overly broad approach would give rise to some practical concerns. Imposing the obligation upon all radio stations for example, would raise the possibility of parties having to make requests to hundreds of individual stations, some of which may not be capable of coping with such requests, or their music programming may not be compatible with extensive spoken-word programming.
Political broadcasting is essentially public affairs broadcasting and there is a logic in imposing the obligation to provide free time political broadcasts upon stations or services that include significant news or public affairs programming as part of their mandate. This targeted universe would be comprised of the following stations:
CBC (Radio One)
Private English radio (limited to news/talk radio stations)
SRC (Première Chaîne)
Private French radio (limited to news/talk radio stations)
Conventional Television Stations
Other (e.g. CHUM, Craig)
Specialty Television Services
Increasing the universe of stations and services obliged to provide free time would increase the reach of free time broadcasting and necessitate less time being required of each station. For this reason, each subject station would be required to provide only 60 minutes of free time broadcasting over the course of the campaign.
It has been suggested by the Broadcasting Arbitrator that extending the requirement to provide free time to all television stations in this manner would not affect the situation in French Canada, where all stations are already covered, but would render the situation in English Canada much more equitable, reducing significantly the number of minutes provided (from 214 to 60) and by making all television stations subject to the same requirement. The net exposure for free time advertising would increase because of the greater combined reach.
The Act should not direct when free time is provided or the length of any broadcast provided.
The Act should, however, direct that free time be scheduled reasonably evenly over the last three weeks of the election period, i.e. following the nomination date cutoff.
In order to accommodate the participation of eligible parties in this process, free broadcasts should only be permitted after the nomination date cutoff, to allow for the readjustment of apportionment should an eligible party fail to achieve registered party status or a registered party fail to keep its registered party status.
Recommendations: The Canada Elections Act should specify that 60 minutes of free time, divided equally between all registered parties that request it, is to be provided by all television stations (not just networks) that broadcast news or public affairs programs, and by all news/talk radio stations and specialty television services focusing on news or public affairs.
The Act should not direct when free time is provided or the length of any broadcast provided.
The Act should specify that free time be scheduled reasonably evenly over the election period to avoid parties attempting to schedule all of their free time within the last week of the election.
In order to accommodate the participation of eligible parties in this process, free broadcasts should only be permitted after the nomination date cut-off to allow for the readjustment of apportionment in the event of the failure of an eligible party to achieve registered party status or a registered party to maintain its status.
4.1.4 Paid Time Regime
The paid time regime of the Act should be amended to provide for 100 minutes of paid time, which each party has a right to buy at the lowest unit charge, subject only to the party's election expense spending limit. The scheduling of purchased time should be at the discretion of the registered party (as at present), pre-empting regular commercial ads if necessary. (However, the Broadcasting Arbitrator suggests this should rarely be necessary. CRTC regulations do not count political ads towards the twelve minute limit per hour of commercial messages on television stations.)
There should be an overall cap of 300 minutes, which each station must make available for purchase by all parties. Where the number of parties seeking to purchase paid time at the lowest unit rate would require the station to provide more than this cap, the station should be allowed to reduce every party's requested time on a pro rata basis, subject to the moderation of any disputes by the Broadcasting Arbitrator. The Broadcasting Arbitrator should also be authorized to arbitrate disputes over the purchase of specific time slots.59
The Broadcasting Arbitrator has suggested that the statutory rate for the sale of paid broadcast time be based upon a comparable provision in s. 315(b) of the United States Communications Act, which employs the concept of "lowest unit charge". This is calculated to avoid the current uncertainty arising out of the Act's present use of the term "equivalent time" (which, according to the Broadcasting Arbitrator, makes complaints about rates difficult to compare and assess). It is suggested that stations not be allowed to charge an amount exceeding the lowest unit charge made for the same class and amount of time on the same facilities made available to any other person for the same period.
A party wishing to buy more than the 100 minutes of preferential-rate time would be free to do so subject only to its election expense limits and the agreement of the stations, which would be obliged to treat all parties equitably in this regard. In the unlikely event of one party attempting to dominate the market unfairly, disputes could be resolved by the Broadcasting Arbitrator.
The existing statutory provisions in s. 344 of the Act require each registered party and each eligible party wishing to buy paid time, to give notice of its desire to purchase paid time no later than ten days following the issue of the writs for a general election. Disputes in this regard would continue to be arbitrated by the Broadcasting Arbitrator, according to the principles currently set out in s. 344.
Recommendations: The Act should be amended so that each registered party has the right to buy up to 100 minutes per station of paid time at the lowest unit rate, subject to their election expense spending limits.
The scheduling of purchased time should be at the discretion of the registered party, pre-empting regular commercial advertisements if necessary (same as the existing system).
Registered parties would be required to pre-notify the station of their scheduling intentions within ten days of the issue of the writs (same as the existing system).
There should be an overall cap of 300 minutes on the amount of paid time, which each station must provide overall to all parties. Where the number of parties seeking to purchase paid time at the lowest unit rate would require the station to provide more than this cap, the station should be allowed to reduce every party's requested time on a pro rata basis, subject to the moderation of any disputes by the Broadcasting Arbitrator.
The Broadcasting Arbitrator should be authorized to arbitrate disputes over the purchase of specific time slots.
The statutory rate for the sale of paid broadcast time should be based on the concept of "lowest unit charge" in order to avoid the current uncertainty arising out of the Act's use of the phrase "equivalent time".
Any registered party wishing to buy more than the 100 minutes of paid time, and any eligible party wishing to buy paid time, would be free to do so at the lowest unit rate, subject only to its election expense limits and the willingness of the station to sell the time. Again, in the unlikely event of one party attempting to dominate the market unfairly, disputes could be resolved by the Broadcasting Arbitrator.
4.1.5 Election Opinion Surveys
To provide electors with the means of judging the reliability of election opinion surveys, the Canada Elections Act currently contains a two-stage disclosure scheme respecting the transmission of such surveys. Section 326 requires the first person transmitting an election opinion survey, and any person who subsequently transmits the survey within 24 hours of its first transmission, to provide a basic package of information respecting it. This package indicates the name of the sponsor of the survey, the name of the person or organization who conducted it, the date on which the survey was conducted, the population from which the sample of respondents was drawn, the number of people who were contacted to participate in the survey, and, if applicable, the margin of error in respect of the data obtained.
This obligation falls equally upon the print and broadcast media.
A person who wishes to analyze the survey in more detail may contact the sponsor of the survey for a more detailed report respecting its methodology and how it was conducted. The obligation upon the sponsor to provide the report, and the requested content, is set out in s. 326(3).
To ensure that the public is aware of the right to secure the more detailed report set out in s. 326(3), the print media, and any broadcast media not regulated by the CRTC (e.g. the Internet) are required to include, with the basic package of information, the wording of the questions used in the survey and the means by which the more comprehensive report referred to in s. 326(3) may be obtained.
This obligation does not extend to the broadcast media regulated by the CRTC.
Admittedly, it may not be as feasible in a broadcast transmission to include the information required by s. 326(2) as it is in a print or electronic print transmission. However, there appears to be no reason why broadcasters subject to the disclosure obligations of s. 326(1) could not, as a minimum, be required to have the information on hand and to advise the public how to secure it from them if desired. For example, most broadcasters maintain Web sites. The information required by s. 326(2) could be posted on the broadcaster's Web site and the broadcast could refer the listener to that Web site for the information required under s. 326(2).
Recommendation: Subsection 326(2) should be amended so that broadcast media regulated by the CRTC are subject to the same requirements that broadcast media not regulated by the CRTC (e.g. the Internet) must meet with respect to disclosure of the wording of the questions used in political opinion surveys and the means by which further details about such surveys may be obtained.